Amicus Curiae Brief — Duro v. Reina

No.

In the Supreme Cot of the Uniteeweeneer oe

OCTOBER TERM, 1989

ALBERT DURO, PETITIONER

Vv,

EDWARD REINA, CHIEF OF POLICE, SALT RIVER

DEPARTMENT OF PUBLIC SAFETY, SALT RIVER

PIMA-MARICOPA INDIAN COMMUNITY, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

MARTIN L. ALLDAY ROBERT L. KLARQUIST

Solicitor EDWARD J. SHAWAKER

WILLIAM G. LAVELL Attorneys

Associate Solicitor Department of Justice

ScoTT KEEP Washington, D.C. 20530

Assistant Solicitor (202) 633-2217

DAVID C. ETHERIDGE

Attorney

Department of the Interior

Washington, D.C. 20240

QUESTION PRESENTED

Whether an Indian tribe has jurisdiction to prosecute

Indians who are members of another tribe for offenses

committed on the tribal reservation.

(1)

TABLE OF CONTENTS

Page

peeeeees Ge Gee Weeeee memes ......................................... 1

EEE EL 1

a sassnsusennansncccones 6

EER Ee ne 9

I. Tribal governmental instrumentalities have long

been recognized as retaining criminal jurisdic-

tion over offenses committed by all Indians

against Indians in Indian country ...................... 10

II. The tribal court has the primary interest in

exercising this jurisdiction —..................e 19

III. Applying tribal court jurisdiction to petitioner

does not deprive him of any constitutional or

a esccuseesensessommen 25

a _ssusstensconeccasoccoses 30

TABLE OF AUTHORITIES

Cases:

Application of Denetclaw, os Ariz. 299, 320 P.2d

ST 15

Application of Monroe, 55 Wash. 2d 107, 346 P.2d

EL SE 15

Brendale v. Confederated Tribes & Bands of

Yakima, 109 S. Ct. 2994 (1989) 000. 22, 24

Bryan V. Itasca County, 426 U.S. 373 (1976)........ 16-17

California Vv. Cabazon Band of Mission Indians,

i . . cescencasancccereces 19

Cotton Petroleum Corp. v. New Mexico, 109 S. Ct.

EE 19

Crow Dog, Ex parte, 109 U.S. 556 (1883) 0... 10, 13

Donnelly v. United States, 228 U.S. 243 (1913)...... 15, 18

Draper v. United States, 164 U.S. 240 (1896) ........ 15

Greywater v. Joshua, 846 F.2d 486 (8th Cir.

Cee _nncscncnencceses 26

Keeble v. United States, 412 U.S. 205 (1973)........ 13

Kennerly v. District Court of Montana, 400 U.S.

EE 18

: IV

Cases—Continued: Page

McClanahan v. State Tax Comm’n, 411 U.S. 164

RRR eer ere nv v ERE T mE EEA Te nen SPITS retro ie 17

Merrion Vv. Jicarilla Apache Tribe, 455 U.S. 1380

ERUTEEEEED ccmsconnssecosssennicnnassaeidnnieitaeenseiiiaaiaiiddniadiiti ana taniue 3

Montana Vv. United States, 450 U.S. 544 (1981) ....6, 22, 24

Morton Vv. Mancari, 417 U.S. 535 (1974)........ 6, 9, 28, 29

National Farmers Union Inc., Cos. v. Crow Tribe,

BS SF ee 3

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

EEE xescsiduenstiteienetenanetinmedamateaentl 3, 6, 9, 10, 21

Ramah Navajo School Bd. v. Bureau of Revenue,

458 U.S. 8382 (1982) ...................002202. 19

Santa Clara Puedlo v. Martinez, 436 U.S. 49

RENEE ciscnecdastaitsenteseasitnastbinesinitecstiinnaidiptin ta tauen te 22, 25, 26

Seymour V. Superintendent, 368 U.S. 351 (1962).. 15

State v. Allan, 100 Idaho 918, 607 P.2d 426

EERUTTIIY wciccncietincnenicsiasinstieiaiiiaiaticiaadiantd Lachlan 15

State v. Flint, 157 Ariz. 227, 756 P.2d 324 (Ct.

App. 1988), review denied (July 2, 1988), cert.

denied, No. 88-603 (June 26, 1989) 000000. 15-16

Talton v. Mayes, 163 U.S. 376 (1896) __...... ee 25-26

United States v. Antelope, 430 U.S. 641 (1977)...... 4, 6, 9,

10, 27, 28, 30

United States v. Burland, 441 F.2d 1199 (9th

Cir.), cert. denied, 404 U.S. 842 (1971) _.......... 14

United States v. Clapox, 35 F. 575 (D. Ore. 1888) .. 22

United States v. Dodge, 5388 F.2d 770 (8th Cir.

SUITED. <naseccunsesdnceconanatneubédatedtiesnisemadmtas amines 14

United States v. John, 437 U.S. 634 (1978)... 14, 15, 29

United States v. Kagama, 118 U.S. 375 (1886)...... 9, 14,

24, 25

United States v. McGowan, 302 U.S. 535 (1988)... 20

United States v. McBratney, 104 U.S. 621 (1882).. 15

United States v. Mitchell, 445 U.S. 535 (1980) ...... 20

United States v. Rogers, 45 U.S. (How.) 567

ER RRR ree Oe ae AO. ea 12

United States v. Wheeler, 435 U.S. 313 (1978)...... 11, 13,

18, 23, 24

Warren Trading Post Co. Vv. Arizona Tax Comm’n,

- ! S 5 Re else Ps 19

Vv

Cases—Continued : Page

Washington v. Confederated Tribes, 477 U.S. 134

p (NGGO) nnn-nnn-n-nsncnnnnenecensererovsnrenecennanesncenenensneresesesoes 3, 5-6

Vashington v. Yakima Indian Nation, 439 U.S.

BI | CI | eccinrinesctensicreccnnnsneaemennansemenmansastnnion 3,5, 15, 17

White Mountain Apache Tribe v. Bracker, 448

FS FF —> 19, 22

Williams v. Lee, 358 U.S. 217 (1959) ....9, 15, 16, 17, 22, 29

Williams v. United States, 8327 U.S. 711 (1946) ...... 15

Worchester Vv. Georgia, 31 U.S. 515 (1832) ............ 15

Constitution, statutes and regulations:

U.S. Const. :

Be i Gs OD ccciiesesccssineninepnrencies LASSER AN ev 9

Amend. V:

Equal Protection Clause ..........................-. 6

Due Process Clause ...............-...----------++++++- 6, 29

Act of Mar. 3, 1817, ch. 92, 23 Stat. 383 ................. 10-11

Act of June 36, 1834 (Trade and Intercourse), ch.

GG yy 11, 12, 13, 14

Act of Feb. 18, 1875, ch. 80, 18 Stat. 318 ............... 13

Act of Mar. 27, 1854, ch. 26, 10 Stat. 269:

SS, 10, Stat. 27O ..................-----cceeeseoen-neoveennnensenee 11

$8 $5, 10 Stat. B76 .....................--.--..-c-ceeencennennees 11

8 4, 10 Stat. BIO .....................00--cceeeeeoecesiavenseccees 11

FS) SS een nn 11

Act of Mar. 3, 1885, ch. 341, 23 Stat. 385 .............. 11, 13

Act of June 2, 1924, ch. 233, 43 Stat. 253 ............. 12

Act of June 25, 1948, ch. 645, 62 Stat. 757 ............ 14

Act of Aug. 15, 1953, ch. 565, 67 Stat. 588 (Public

te TD vccenseccnensvnccctnnricnviensepnnneesonnsopmeeelmeicanéseste 16

Act of Oct. 12, 1984, Pub. L. No. 98-473, § 1009,

I... cccnsccsoncnubistessnanssiiamwcnammaiesatnaametiins 16

Act of May 15, 1986, Pub. L. No. 99-303, 100 Stat.

i aac camenetiboninanentianaiminemeett 16

Indian Civil Rights Act of Apr. 11, 1968, Pub. L.

No. 90-284, 82 Siat. 73:

25 U.S.C. 1302 (§ 2) ..... SS AME ae Pe ene 4, 26

, Lik le |) SPAN nse eRe OTT 27

95 U.S.C. 1302(8) _.. TESOL

VI

Statutes and regulations—Continued : Page

| Fa SOD a ea ce a 26

25 U.S.C. 1311 (§ 301, 82 Stat. 78) 22

BP Pe MPI ostcecccnsncenenemesennanenaneceenczscc 16

25 U.S.C. 1322(a) (§402(a), 82 Stat. 79)... 17

Indian Reorganization Act of 1934, ch. 576, § 1,

48 Stat. 984 (25 U.S.C. 461) ................................ 29

Rev. Stat.:

SETAE NRAL Rae os Ae ea 22

I a Fb he 3 Ths 22

I Nh Aes aes. 13

I aa ee er er he a ZL 13

I a a er a Ne 2

SEI na rere ee ea 2

ESET ear ee enna 14, 30

I 20

i ea Re eee eee see Pe 20

I 4, 14, 29

LE A Sete Ane Sean 4, 5, 14, 15, 21

ie I 2, 4, 5, 14, 30

_.. .. Sills ae 46

Ee EEC one ae 22

8 CUES ar eS 22

EISEN RSLS ae oer ee ae ee ee, ee 28

EE ae ee wk ee ey 28

| Re 28

i 46

25 C.F.R.:

EEE EE eee ae ee 2 Bie Sie eee cee 22

a cesurartameiidieten. 22

Section 11.2(h) 000 22

Pt. 271:

ee 28

41 C.F.R. 60-1.5(6) ................. eed meas sasigaatnianenes 28

_ . _, | | eee 27

Ey eee 28

Miscellaneous:

2 Bureau of the Census, U.S. Dep’t of Commerce,

1980 Census of Population (1986) _......... 19, 21

Miscellaneous—Continued :

Bureau of the Census, U.S. Dep’t of Commerce,

We, The Fivet Americans ....................--...200......--

Bureau of Indian Affairs, U.S. Dep’t of the In-

terior, Indian Land Areas (1971) ~......................

S. Brakel, American Indian Tribal Courts, in In-

dians and Criminal Justice (L. French ed. Allan-

held, Osmun & Co. 1982) ..........-..2.22..2..222..2eeeeeeeeeee

F. Cohen, Handbook of Federal Indian Law

i i a eeieeeetenemaiiaialainelicannines

Clinton, Development of Criminal Jurisdiction

over Indian Lands: The Historical Perspective,

Page

oF UE SR OR | eee 13

135 Cong. Rec. $2186-S2192 (daily ed. Mar. 6,

UE aes aR, ES I CE TEI ne ee 26

Crimes Committed by Indians, 17 Op. Att’y Gen.

CU rr caenleneebeentingmmnneannaasiants 13

53 Fed. Reg. (1988) :

TERR aE RR IA aoe ee rekneoa ee 2

I saticnscinicnallhacStabiiine tlsccanea nana telinanadaicaslasdbaainnios 2

< ° ee BEEP SD OTT PORT a IO 2

Goldberg, Public Law 280: the Limits of State

Jurisdiction over Reservation Indians, 22 UCLA

a a seephasieetin 17

H.R. Rep. No. 474, 23d Cong., Ist Sess. (1834) ...... 11

H.R. Rep. No. 848, 83d Cong., Ist Sess. (1953) ...... 16, 17

H.R. Rep. No. 1030, 98th Cong., 2d Sess., 3498

IIIT <citsicancaideieenerietetiacacadtiaimaiaieahinbanninmelaneseheniundvnes 16

H.R. Rep. No. 528, 99th Cong. Sess. (1986) ......... 16

S. Levine & N. Lurie, The American Indian To-

day (1968) ...... $Date EERE NH SFE PCRS ee RAE 20

Report of the U.S. Commission on Civil Rights,

Indian Tribes, A Continuing Quest for Sur-

a caeeaaialiies

Report on Federal, State, and Tribal Jurisdiction

—Task Force Four: Federal, State, and Tribal

Jurisdiction (Comm. Print 1976) .......0000......... 20-21, 25

S. 517, 101st Cong., Ist Sess. (1989) 0.00... 26

M. Wax, Indian Americans: Unity and Diversity

er 20

In the Supreme Court of the United States

OCTOBER TERM, 1989

No. 88-6546

ALBERT DURO, PETITIONER

Vv.

EDWARD REINA, CHIEF OF POLICE, SALT RIVER

DEPARTMENT OF PUBLIC SAFETY, SALT RIVER

PIMA-MARICOPA INDIAN COMMUNITY, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

The United States has a statutory responsibility for

law enforcement on Indian reservations under 18 U.S.C.

1151-1153. That statutory responsibility is complemen-

tary to the tribal law enforcement authority, the scope of

which is at issue in this case. In addition, by virtue of

its trust responsibility to the Indians as well as its re-

sponsibility to protect the civil rights of all its citizens,

the United States has an interest in assuring that law

enforcement by the tribes themselves is both fair to all

defendants and effective in assuring an orderly and

peaceful reservation.

STATEMENT

1. Petitioner is an enrolled member of the Torres-

Martinez Band of Cahuilla Mission Indians, and has lived

a large portion of his life off-reservation, apparently in

California (Pet. App. B 1138). Between March and

(1)

2

June, 1984, he lived with a woman friend, a member of

the Salt River Pima-Maricopa Indian Community (the

Community), on that Tribe’s reservation in Arizona.

During this time, he also worked for the PiCopa Con-

rr Company, which is owned by the Community

ibid.).

On June 18, 1984, a complaint was filed in federal

court charging petitioner with murder and aiding and

abetting murder, in violation of 18 U.S.C. 2, 1111 and

1153. On that same date, he was charged in the tribal

court of the Salt River Reservation with discharging a

firearm on the reservation, in violation of the Salt River

Community’s Code of Misdemeanors. In both cases, it

was alleged that petitioner shot and killed a fourteen-

year-old boy within the boundaries of the reservation.

The victim was an enrolled member of the Gila River

Indian Tribe of Arizona, which resides on a separate

reservation. Pet. App. B 1138.

Federal agents arrested petitioner. Although he was

_indicted in federal court for first degree murder, that

indictment was later dismissed without prejudice on the

motion of the government. Petitioner was then placed in

the custody of the tribal Community Department of Pub-

lic Safety. Pet. App. B 1138-1139.

He petitioned the United States District Court for the

District of Arizona for a writ of habeas corpus, which

that court granted. Pet. App. D 1-6. The district court

relied on the Indian Civil Rights Act of 1968, specifically

25 U.S.C. 1302(8), which states that an Indian tribe

exercising powers of self-government may not “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.” The court found that the

Community’s code of ordinances provides for criminal

jurisdiction over any nonmember, but that such jurisdic-

1 Both the Torres-Martinez Band and the Salt River Pima-

Maricopa Indian Community are federally recognized Indian tribes.

See 53 Fed. Reg. 52,829, 52,831, 52,832 (1988).

3

tion is asserted only over nonmember Indians.? The court

ruled that the Community’s enforcement policy was not

justified “under either the rational basis or strict scru-

tiny standards,” and that the assertion of criminal juris-

diction over petitioner therefore violated 25 U.S.C. 1302

(8). Pet. App. D 5. ~

The court of appeals reversed, with Judge Sneed dis-

senting (Pet. App. B).* The court first noted that in

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

(1978), this Court held that tribes lack criminal juris-

diction over non-Indians. The Ninth Circuit observed

that that opinion referred only to non-Indians, as some

subsequent opinions of this Court have recognized (Na-

tional Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S.

845-853 (1985); Washington v. Confederated Tribes, 447

U.S. 134, 153 (1980)), although others have more gen-

erally characterized Oliphant as applying to nonmembers

of the tribe (Merrion v. Jicarilla Apache Tribe, 455 U.S.

130, 171-173 (1982) (Stevens, J., dissenting); United

States v. Wheeler, 435 U.S. 318, 326 (1978)). The court

concluded, Pet. App. B 1140-1141, that this Court “has

not used the terms non-Indian and nonmember Indian

precisely,” and that the holdings in the opinions cited

above do not depend on making that distinction with re-

gard to Oliphant. Id. at 1139-1141.

The court then analyzed Oliphant itself, explaining

that it was based on an historical shared presumption

that Indian tribes lack jurisdiction over non-Indians. The

court found that no such presumption exists regarding

nonmember Indians, and that there is some indication

of the opposite understanding—that tribes have jurisdic-

tion over nonmember Indians. Pet. App. B 1141.

2 Under Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978),

Indian tribes lack criminal jurisdiction over non-Indians in the

absence of an express delegation by Congress.

8 The court’s opinion was a substantial revision of a July 9, 1987,

opinion by the panel, to which Judge Sneed had also filed a dissent

(Pet. App. C).

4

The court also found in the pattern of federal criminal

law set out in 18 U.S.C. 1151-1153 an indication that

tribes have criminal jurisdiction over nonmember Indians.

Under those statutes, the federal courts have criminal

jurisdiction over crimes by or against “Indians” in In-

dian country, except for “offenses committed by one In-

dian against the person or property of another Indian,”

crimes already punished by the local law of the tribe, or

where treaties place jurisdiction exclusively in a tribe

(18 U.S.C. 1152); federal courts also have jurisdiction

over certain specified major offenses committed by one

Indian against the person or property of another Indian

(18 U.S.C. 1153). The court found in these statutes an

understanding that, regardless of the defendant’s or vic-

tim’s particular tribal membership, most crimes by one

Indian against another were to be prosecuted in tribal

court, while the identified major crimes would go to fed-

eral court. It concluded that “if Congress had intended

to divest tribal courts of [general] criminal jurisdiction

over nonmember Indians they would have done so,” and

that, in the absence of congressional action, tribes retain

that jurisdiction. Pet. App. B 1141-1143.

Finally, the court rejected the argument that the

Tribe’s assertion of jurisdiction over petitioner violated

equal protection principles as reflected in the Indian Civil

Rights Act of 1968, 25 U.S.C. 1302. Citing United States

v. Antelope, 430 U.S. 641, 645 (1977), the court con-

cluded that Indian status is a political rather than racial

classification. The court also noted that petitioner was

closely associated with the Community because of his

relationship with his girlfriend, his residence with her

family on the reservation, and his employment with the

Community’s PiCopa Construction Company. It con-

cluded that these contacts justify the tribal court’s juris-

diction over him, and emphasized that this was not

“purely a racial determination.” Pet. App. B 1144.

The court also ruled that allowing tribal court juris-

diction over member and nonmember Indians has a ra-

tional basis because of the inadequacy of federal and

5

state law enforcement resources for Indians on reserva-

tions, and because the existence of such jurisdiction could

reasonably be thought to strengthen the tribal courts.

The court therefore found no violation of equal protection

principles. Pet. App. B 1145.

Finally, the court observed that if tribal courts lacked

jurisdiction over most offenses committed by nonmember

Indians on the reservation, there would be a jurisdictional

void: under 18 U.S.C. 1152, the federal government lacks

general criminal jurisdiction over crimes committed by

one Indian against another Indian, and since state courts

do not (and generally cannot) assert criminal jurisdic-

tion over crimes by Indians on Indian reservations, a lack

of tribal court jurisdiction would lead to no capacity to

prosecute nonmember Indians for committing crimes not

specifically identified in 18 U.S.C. 1153 against Indians

on the reservation. Pet. App. B 1145-1146.

In his dissenting opinion (Pet. App. B 1146-1152),

Judge Sneed concluded that retained tribal sovereignty

exists only to govern the behavior of tribal members.

While he found 18 U.S.C. 1152 to be consistent with

tribal criminal jurisdiction over nonmember Indians, he

reasoned that the federal statute does not require or

grant that jurisdiction and therefore does not give a

tribe powers greater than its retained sovereignty. Fi-

nally, Judge Sneed concluded that upholding tribal juris-

diction over nonmember Indians unjustifiably discrimi-

nates against those persons.*

The court of appeals denied rehearing en banc, with a

dissent by Judge Kozinski, joined by two other judges.

Pet. App. A. Judge Kozinski argued (as had Judge

Sneed) that the court’s holding was contrary to Oliphant

and Wheeler; he also found it contrary to Washington Vv.

4 Judge Sneed would avoid the jurisdictional gap posited by the

panel majority by treating the nonmember Indian as a non-Indian

for the purposes of the Section 1152 exception from federal juris-

diction of offenses committed by one Indian against another, but

as an Indian subject to federa! jurisdiction under that Section.

Pet. App. B 1151.

6

Confederated Tribes, 447 U.S. 184 (1980) and Montana

v. United States, 450 U.S. 544 (1981).5 Judge Kozinski

asserted that allowing tribal courts criminal jurisdiction

over nonmember Indians would be unjustifiable racial

discrimination and therefore a violation of equal protec-

tion of the laws. He also took the view that such jurisdic-

tion might unfairly subject individuals to biased tribal

courts because of hostility between tribes. Pet. App. A

1468-1470.

SUMMARY OF ARGUMENT

This Court has repeatedly held that federal statutes

dealing separately with Indians do not violate the Equal

Protection or Due Process Clauses of the Constitution,

but instead are based on the historical relationship be-

tween the Indian tribes and the federal government. See

e.g., United States v. Antelope, 480 U.S. 641 (1977);

Morton v. Mancari, 417 U.S. 535, 552-554 (1974). This

Court held in Oliphant v. Suquamish Indian Tribe, 435

U.S. 191 (1978), that Indian tribes lack criminal juris-

diction over non-Indians because of the long historical

understanding that such jurisdiction did not exist, and

because the federal government by statute had assumed

jurisdiction over crimes by non-Indians against Indians

in Indian country. The same analysis leads to the op-

posite conclusion regarding tribal jurisdiction over of-

fenses not covered by the Major Crimes Act committed

by nonmember Indians against Indians in Indian coun-

5 The Confederated Tribes case had allowed an exemption from

state tax on the sales of cigarettes between tribal members on a

reservation, but expressly did not allow that exemption when the

purchaser was a nonmember Indian, because such a tax on non-

member Indians would not impinge on tribal sovereignty (447 U.S.

at 160-161). The Montana case concerned a tribe’s rights to regu-

late hunting and fishing by non-Indians on non-Indian land within

the boundaries of a reservation. This Court’s opinion states that

the “exercise of tribal power beyond what is necessary to protect

tribal self-government or to control internal relations is inconsist-

ent with the dependent status of the tribes, and so cannot survive

without express congressional delegation.” 450 U.S. at 564. See

Judge Kozinski’s opinion, Pet. App. A 1466.

7

try. That jurisdiction has always been retained by the

tribes.

Under the earliest treaties with the Indians and the

concurrent federal laws, the federal government asserted

jurisdiction to punish citizens for certain specified of-

fenses, and to protect citizens against certain offenses

by Indians in Indian territory, but left all other offenses,

whether committed by or against Indians, to be dealt with

by the Indians in accordance with their traditional sys-

tems. Gradually, federal jurisdiction was extended, first

to all offenses involving non-Indians, then, under the

Major Crimes Act, to certain specified serious offenses

even when committed by an Indian against the person or

property of an Indian. Nevertheless, the original under-

standing that nonspecified offenses committed by Indians

against Indians remain subject only to Indian tribal cus-

toms continues to be part of the current criminal] justice

system.

The evolution of the relationship between state and

Indian criminal jurisdiction has followed a somewhat

similar path. Originally, the State had absolutely no

jurisdiction over offenses committed on a _ reservation

within its boundaries. Although eventually state juris-

diction was recognized over offenses committed on the res-

ervation that did not involve Indians either as perpe-

trators or victims, it remains true today that the State

has no jurisdiction over on-reservation offenses involv-

ing Indians except pursuant to procedures established

under Public Law 280 or similar statutes. In Public Law

280, Congress authorized any State that is ready to

commit the resources necessary to maintain law and

order in Indian country within its boundaries to assume

criminal jurisdiction over such areas following comple-

tion of required statutory procedures, including (since

1968) Indian acceptance of state jurisdiction. Absent such

express assumption of state jurisdiction,® the criminal

jurisdiction that has not been assumed by the federal

government remains with the tribe.

6 Arizona has never assumed such jurisdiction.

8

Consideration of the relative interests involved con-

firms this conclusion. Reservations, which are often lo-

cated in remote, sparsely settled areas; typically contain

substantial populations of Indians who are not members

of the “home tribe.”” It is not realistic in such cir-

cumstances for the residents to rely on the limited avail-

ability of state and federal law enforcement resources

for the maintenance of law and order on the reservation.

This is particularly true since, unlike the situation in

Oliphant, the absence of tribal jurisdiction would create

the likelihood of a gap in criminal jurisdiction, placing

certain offenses beyond any legal system. Unless the

tribe has jurisdiction over offenses not within the Major

Crimes Act committed on the reservation by a non-

member Indian against the person or property of an

_ Indian, such offenses may not be punishable at all. That

jurisdictional gap would seriously threaten the mainte-

nance of law and order on the reservation; accordingly,

the preservation of tribal jurisdiction here is imporant in

order to maintain the tribe’s right to the peaceful enjoy-

ment of its territory, one of the rights inherent in its

limited sovereignty.

The existence of tribal jurisdiction over nonmember

Indians does not violate their rights. Although tribes

are not subject to the limits imposed by the Constitution

on the state and federal governments, they are subject

to the Indian Civil Rights Act, which contains com-

parable equal protection and due process guarantees.

The tribe does not violate those guarantees so long as it

treats everyone subject to its jurisdiction alike, whether

a tribal member or a non-member Indian, and provides

for fair treatment. There is no claim here that petitioner,

who has not yet been tried by the tribal court, has been

treated unfairly by the tribal judicial system itself. Such

claims can, in any event, be presented to a federal court

through a writ of habeas corpus under the Indian Civil

7 Indeed, in some parts of Indian country, there may not even be

a “home tribe.” See note 28, infra.

9

Rights Act. Nor does the fact that petitioner is subject

to tribal jurisdiction because he is an enrolled member

of an Indian tribe offend the federal Constitution, even

though a non-Indian citizen would not be so subject.

Distinctions based on such enrollment are not immutable

racial classifications—tribal membership is voluntary, and

if it is formally renounced, the individual is thereafter

treated like any other non-Indian citizen for purposes

of criminal jurisdiction. This Court has consistently rec-

ognized that distinctions based on tribal membership,

like those reflected in the federal statutory plan, are ap-

propriate in light of the unique relationship between the

tribes and the federal government.

ARGUMENT

Article I, § 8, Cl. 3 of the Constitution empowers Con-

gress to “regulate Commerce * * * with the Indian

Tribes.” The Court has long recognized that this clause,

together with the unique historical relationship between

the United States and the Indian tribes, authorizes Con-

gress to enact laws specifically applicable to Indians. See,

e.g., United States v. Kagama, 118 U.S. 375 (1886) ;

Williams v. Lee, 358 U.S. 217, 219 n.4 (1959); United

States v. Antelope, 430 U.S. 641, 645 (1977). In par-

ticular, legislation providing that enrolled members of

Indian tribes shall be treated differently from citizens

who are not tribal members does not reflect an impermis-

sible racial classification. Antelope, 430 U.S. at 645-646;

Morton v. Mancari, 417 U.S. 535, 552-554 (1974). More-

over, in the area of criminal law enforcement, the Court

has specifically held that constitutional equal protection

guarantees do not prohibit the treatment of Indian tribal

members differently from non-Indians (Antelope, 430

U.S. at 647-650).

Of course, the fact that such a rule may be constitu-

tionally permissible does not of itself indicate that a spe-

cial rule or practice applies in the Indian context. For

example, this Court concluded in Oliphant v. Suquamish

Indian Tribe, 435 U.S. 191 (1978), that jurisdiction to

10

try non-Indians for offenses committed in Indian coun-

try is not part of the retained tribal sovereignty. It

reached that conclusion on the basis of an analysis of

the “treaties drawn and executed by the Executive

Branch and legislation passed by Congress[,] * * * read

in light of the common notions of the day and the as-

sumptions of those who drafted them” (Oliphant, 435

U.S. at 206). A similar analysis leads to the conclusion

that retained tribal sovereignty does include jurisdiction

to try enrolled members of any Indian tribe who reside

within the tribal court’s jurisdiction.*®

I. TRIBAL GOVERNMENTAL INSTRUMENTALITIES

HAVE LONG BEEN RECOGNIZED AS RETAINING

CRIMINAL JURISDICTION OVER OFFENSES

COMMITTED BY ALL INDIANS AGAINST INDI-

ANS IN INDIAN COUNTRY

Federal legislation has from the earliest enactments

occupied the field of criminal jurisdiction involving In-

dians in Indian country, to the exclusion of state juris-

diction. Originally, Congress dealt only with specific

crimes involving non-Indians as perpetrators or victims,

and left crimes by Indians against Indians to be dealt

with by the tribes. See Ex parte Crow Dog, 109 U.S.

556, 571 (1883). In the Act of Mar. 3, 1817, ch. 92, 23

8 We submit that an appropriate test for determining whether a

resident is an Indian for purposes of tribal court jurisdiction is

whether the individual is an enrolled member of an Indian tribe.

See Antelope, 430 U.S. at 646-647 n.7 (stating that enrolled tribal

members are, by reason of enrollment, “not emancipated from tribal

relations”, and suggesting that enrollment is by itself enough to

justify treating an individual as an Indian so that federal criminal

jurisdiction attaches; leaving open question whether it is an abso-

lute requirement). It is unnecessary in this case to determine

whether other factors, either singly or in combination, would also

serve to identify a resident as an Indian subject to tribal court

jurisdiction, or whether tribal court jurisdiction would extend to

non-resident Indians. Specifically, the Court need not consider

whether the court below appropriately suggested a “totality of cir-

cumstances” test for determining Indian status for purposes of

tribal court criminal jurisdiction. See Pet. App. B 1144.

11

Stat. 383, Congress adopted the criminal laws of the

United States applicable in federal enclaves to the ter-

ritory belonging to any Indian tribe, and expressly dis-

claimed jurisdiction over crimes committed in that ter-

ritory by Indians against Indians. The statute spe-

cifically stated:

That nothing in this act shall be so construed as to

affect any treaty now in force between the United

States and any Indian nation, or to extend to any

offense committed by one Indian against another,

within any Indian boundary.

Section 25 of the Act of June 30, 1834, ch. 161, 4 Stat.

733, continued the exception for “crimes committed by

one Indian against the person or property of another

Indian.” See United States v. Wheeler, 435 U.S. 313

(1978). Cf. Sections 3-5 of the Act of Mar. 27, 1854,

ch. 26, 10 Stat. 270.°

When these statutes were passed, Congress made no

distinctions based on tribal membership: the distinction

was simply between Indians and non-Indians. Federal

criminal jurisdiction extended to Indians whenever the

crime involved a non-Indian, either as perpetrator or

victim. Absent such involvement, Indian tribes retained

criminal jurisdiction, within their boundaries, over In-

dians generally." See H.R. Rep. No. 474, 23d Cong., Ist

Sess. 13 (1834) (emphasis in original) :

® Section 3 of the 1854 Act further manifested the intention to

leave crimes by Indians against Indians to tribal punishment. It

added an exception from federal jurisdiction for crimes punished

“by the local law of the tribe’ and also restored the exception where

exclusive jurisdiction was given to a tribe by treaty.

Sections 4 and 5 spelled out specific crimes: arsen and assault

with a deadly weapon. The crime of arson applied to a non-Indian

no matter whose building was burned, but to Indians only if they

set fire to property at least partially owned by a non-Indian. Like-

wise, the crime of assault applied to a non-Indian assaulting any-

one, but to Indians only when they assaulted non-Indians.

10 On pages 29-37 of his brief, petitioner cites a number of early

Indian treaties which assert federal jurisdiction over crimes by

12

It will be seen that we cannot, consistently with the

provisions of some [of] our treaties, and of the ter-

ritorial act, extend our criminal laws to offences

committed by or against Indians, of which the tribes

have exclusive jurisdiction; and it is rather of cour-

tesy than of right that we undertake to punish

crimes committed in that territory by and against

our own citizens. And this provision is retained

principally on the ground that it may be unsafe to

trust to Indian law in the early stages of their

Government. It is not perceived that we can with

any justice or propriety extend our laws to offences

committed by Indians against Indians, at any place

within their own limits.

This Court early recognized that this reservation of

tribal jurisdiction was not limited to members of the tribe

possessing a particular piece of Indian country. It in-

terpreted the Indian-against-Indian exception of Section

25 of the 1834 Act in United States v. Rogers, 45 U.S.

(4 How.) 567 (1846), ruling that it applied to Indians

as a class—without regard to tribe. “[The exception]

does not speak of members of a tribe, but of the race

generally,—of the family of Indians; and it intended to

leave them both, as regarded their own tribe, and other

tribes also, to be governed by Indian usages and cus-

toms” (45 U.S. at 573).

Indians against “citizens of the United States” or by “citizens”

against Indians. These treaties are simply further examples of the

general assertion of federal criminal jurisdiction over crimes involv-

ing non-Indians, since there was no general grant of citizenship to

Indians until 1924. Act of June 2, 1924, ch 233, 43 Stat. 253.

Although none of these treaties involve the Salt River Indian

Community, petitioner argues (Br. 31-32) that since he is a citizen

of the United States, these early treaty provisions indicate that the

federal government, not the tribe, should have jurisdiction over

him. But although petitioner is certainly a citizen, he is also

indisputably an Indian (see p. 1, supra). There is no indication in

the text or legislative history of the 1924 Act that the extension

of citizenship to Indians was in any way intended to affect the

longstanding and subsequently reenacted “Indian-against-Indian”

exception to federal jurisdiction, which does not turn on citizenship.

13

Section 25 of the 1834 Act was re-enacted as Sections

2145 and 2146 of the Revised Statutes in 1875, continu-

ing the exception from federal jurisdiction for crimes

committed by Indians against the person or property of

Indians."' This general statutory scheme, originating in

1817, has continued in effect to the present day, with

one important modification resulting from this Court’s

decision in Ex parte Crow Dog, 109 U.S. 556 (1883).

In that case, one Lower Brule Sioux Indian was con-

victed in federal court of murdering another Lower Brule

Sioux Indian, within Indian country. Relying on the

Indian-against-Indian exception, this Court ruled that

the federal courts had no jurisdiction over the crime, and

the murderer was released. See also Crimes Committed

by Indians, 17 Op. Att’y Gen. 566 (1883); Clinton,

Development of Criminal Jurisdiction over Indian Lands:

The Historical Perspective, 17 Ariz. L. Rev. 951, 958-962

(1975).

In reaction to Crow Dog, Congress enacted Section 9

of the Act of Mar. 3, 1885, ch. 341, 23 Stat. 385, the

Major Crimes Act. See Keeble v. United States, 412

U.S. 205, 209 (1973). That statute set out a list of seven

crimes that could be prosecuted in federal court if com-

mitted by an Indian on an Indian reservation, whether

or not the victim was an Indian.'* This Court promptly

11 Congress omitted that exception when it first re-enacted Section

25 of the 1834 Act. This omission was remedied in the Act of

Feb. 18, 1875, ch. 80, 18 Stat. 318, which added the omitted language

with the intent of keeping the exception in force without interrup-

tion. Ex parte Crow Dog, 109 U.S. at 558-559.

12 This opinion, authored by the Solicitor General and later ap-

proved by the Attorney General, considered the murder of an

Arapaho Indian by a Creek Indian within the Pottawatomie Reser-

vation in the Indian Territory. Citing Rogers (and anticipating

Crow Dog), the Attorney General determined that the federal

courts probably lacked jurisdiction over the crime, but indicated

that the “concerned” tribes, if they had an appropriate law “sub-

stantially conformable to natural justice,” would have jurisdiction

to try the defendant, 17 Op. Att’y Gen. at 570.

13 The crimes were murder, manslaughter, rape, assault with

intent to kill, arson, burglary and larceny. Congress has since

14

upheld the validity of the Act in United States v. Kag-

ama, 118 U.S. 375 (1886). As in Rogers, the Court made

clear that the term “Indian” meant simply a member

of some tribe, not necessarily of the tribe occupying the

reservation where the crime occurred (118 U.S. at 383).

The statutes regarding criminal jurisdiction over In-

dians were re-enacted in 1909 and 1932, and consolidated

in the Act of June 25, 1948, ch. 645, 62 Stat. 757, codi-

fied at 18 U.S.C. 1151-1153. United States v. John, 437

U.S. 634, 647, n.16 (1978). This recodification includes

the Major Crimes Act (codified at 18 U.S.C. 1153) and

Section 25 of the 1834 Act (codified at 18 U.S.C. 1152);

it employs the words of the original provisions with only

minor changes."*

This Court, and other courts, have held that in 18

U.S.C. 1151-1153 the term “Indian” includes any Indian

in Indian country, regardless of particular tribal mem-

bership. Kagama, 118 U.S. at 383; United States v.

Dodge, 538 F.2d 770, 785-787 (8th Cir. 1976) (convic-

tion of nonmembers under Major Crimes Act); United

States v. Burland, 441 F.2d 1199 (9th Cir.), cert. denied,

404 U.S. 842 (1971) (conviction of nonmember Indian

added other crimes to the list; the modern version is codified at

18 U.S.C. 1153.

The 1885 statute differentiated between Indian reservations located

in a territory of the United States and those located in a State. In

the first situation, the Indian would be prosecuted in the territorial

courts. In the second, he would be prosecuted in the courts of the

United States. See Kagama, 118 U.S. at 377. Congress later

amended the statute to eliminate the territorial court provision,

and then extended its applicability from Indian reservations to

“Indian country.” United States v. John, 437 U.S. 634, 647 n.16

(1978).

14 One change of significance occurred in the 1948 recodification.

The statutes have always been applicable throughout “Indian coun-

try.” That term had originally been defined to include the Indian

territory generally, a definition that was deleted in the Revised

Statutes; it was defined anew in the 1948 recodification. See John,

437 U.S. at 649 n.18. The new definition includes all land within

the boundaries of Indian reservations, “dependent Indian communi-

ties,” and Indian allotments. 18 U.S.C. 1151.

15

under 18 U.S.C. 1152). Cf. State v. Allan, 100 Idaho

918, 607 P.2d 426, 429 (1980) (State lacks jurisdiction

over bribery committed by Quinault Indian on Coeur

d’Alene Reservation) ; Application of Monroe, 55 Wash.

2d 107, 346 P.2d 667 (1959) (federal jurisdiction is ex-

clusive over crime of aiding and abetting grand larceny

committed by Blackfeet Indian on Yakima Reservation).

A similar analysis of the historical materials discloses

that Congress has consistently operated on the premise

that, absent congressional action, the States have no

jurisdiction over offenses involving Indians in Indian

country.'* This Court has agreed,'’ as have the state

courts.**

15 Nothing in these decisions supports the suggestion in dissent

(see Pet. App. B 1151) that 18 U.S.C. 1152 should be interpreted

to use “Indian” to mean “any Indian” for purposes of federal juris-

diction, but to mean only “same tribe member Indian” for the

Indian-against-Indian exception from federal jurisdiction.

16 Although originally state law did not run at all within the lands

reserved to the Indians (see, e.g., Worcester v. Georgia, 31 U.S. 515,

561 (1832) ), this Court eventually made clear that crimes in Indian

country that did not involve Indians were to be prosecuted in state

courts. United States v. McBratney, 104 U.S. 621 (1882); Draper

v. United States, 164 U.S. 240 (1896).

17 See United States v. John, 437 U.S. at 651; Seymour v. Super-

intendent, 368 U.S. 351, 359 (1962); Williams v. Lee, 358 U.S. at

220 n.5; Williams v. United States, 327 U.S. 711, 714 (1946):

Donnelly v. United States, 228 U.S. 243, 270-272 (1913). As the

Court explained in Washington v. Yakima Indian Nation, 439 U.S.

463, 470-471 (1979):

[S]tate law reaches within the exterior boundaries of an

Indian reservation only if it would not infringe “on the right

of reservation Indians to make their own laws and be ruled by

them.” * * * As a practical matter, this has meant that crimi-

nal offenses by or against Indians have been subject only to

federal or tribal laws * * * except where Congress in the exer-

cise of its plenary and exclusive power over Indian affairs has

“expressly provided that State laws shall apply.”

18 See, e.g., Application of Denetclaw, 83 Ariz. 299, 320 P.2d 697

(1958); State v. Flint, 157 Ariz. 227, 756 P.2d 324 (Ct. App.

16

The major congressional action enabling the States to

exercise such jurisdiction is “Public Law 280,” the Act

of Aug. 15, 1953, ch. 505, 67 Stat. 588, codified as

amended at 18 U.S.C. 1162, 25 U.S.C. 1821-1326 and 28

U.S.C. 1360." This statute granted to certain named

States criminal jurisdiction over Indians in Indian coun-

try within those States, and authorized other States to ac-

quire that jurisdiction through state legislation.”® As this

Court explained in Bryan v. Itasca County, 426 U.S. 373,

1988), review denied (July 2, 1988), cert. denied, No. 88-603

(June 26, 1989).

19 The statute was enacted on the usual premise—that the States

have no jurisdiction over Indians in Indian country in the absence

of a federal statute expressly granting it. See Bryan v. Itasca

County, 426 U.S. at 376 n.2, 379-380 (quoting from H.R. Rep. No.

848, 83d Cong., Ist Sess. 5-6 (1953) ).

More recent federal statutes also acknowledge the lack of state

jurisdiction over Indians in Indian country. Thus, Section 1009 of

the Act of Oct. 12, 1984, Pub. L. No. 98-473, 98 Stat. 2141, added

the offenses of “maiming*’ and “involuntary sodomy” to those listed -

in the Major Crimes Act in order to allow the crimes to be prose-.

cuted in federal court as felonies, because otherwise a crime by an

Indian against an Indian could be prosecuted only in tribal court.

See H.R. Rep. No. 1030, 98th Cong., 2d Sess. 3498 (1984). At the

same time, Congress deleted petty larceny from the Major Crimes

Act because it “is unnecessary and virtually never asserted in light

of tribal court jurisdiction over this offense.” H.R. Rep. No. 1030,

supra, at 3499. See also Act of May 15, 1986, Pub. L. No. 99-303,

100 Stat. 438 (adding offense of sexual molestation of a minor to

the offenses of the Major Crimes Act, because otherwise “only the

tribe has jurisdiction to punish the offense” H.R. Rep. No. 528,

99th Cong., 2d Sess. 5 (1986)). :

20 The Act is discussed in Williams v. Lee, 358 U.S. at 220-221:

Congress has followed a policy calculated eventually to make

all Indians full-fledged participants in American society. This

policy contemplates criminal and civil jurisdiction over Indians

by any State ready to assume the burdens that go with it as

soon as the educational and economic status of the Indians per-

mits the change without disadvantage to them. See H.R. Rep.

No. 848, 83d Cong., Ist Sess. 3, 6, 7 (1953). Significantly, when

Congress has wished the States to exercise this power it has

expressly granted them the jurisdiction which Worcester vy.

Georgia has denied [citing Public Law 280 and other statutes. }

17

379 (1876), congressional concern over the inadequacy

of criminal! law enforcement on Indian reservations was

a major motivation for the enactment of Public Law 280.

Congress also recognized that although the States specifi-

cally identified in Public Law 280 sought to extend their

criminal jurisdiction to Indian country, many other States

lacked the resources to provide for effective law enforce-

ment in Indian country.*! Accordingly, rather than mak-

ing an outright grant of jurisdiction to all States in

which Indian country is located, Public Law 280 merely

gave federal consent to the exercise of such jurisdiction,

leaving it to each State to determine its own “ability and

willingness to accept such responsibility.” H.R. Rep. No.

848, 93d Cong., Ist Sess. 6 (1953); S. Rep. No. 699, 83d

Cong. 1st Sess. 5 (1953) .”

In Section 402(a) of the Indian Civil Rights Act of 1968,

Pub. L. No. 90-284, 82 Stat. 79 (25 U.S.C. 1322(a)),

Congress modified the 1953 Act to require the consent of

the affected Indians to a State’s assumption of jurisdic-

21 See H.R. Rep. No. 848, supra, at 6-8, referring to tribal concern

over lack of state resources, and noting that several States were

prepared to accept such jurisdiction only if they also received fed-

erai financial assistance to permit them to exercise it. S. Rep. No.

699, 83d Cong., Ist Sess. 5-7 (1953) is to the same effect. Since

the State lacks authority to tax reservation Indians and their prop-

erty (Bryan v. Itasca County, supra), it cannot finance its law en-

forcement efforts in that way.

22 Congress also recognized that the Enabling Acts of certain

States required those States to disclaim jurisdiction over Indians

in Indian country. Public Law 280 granted permission to such

States to amend their laws to remove that disclaimer, so that they

could assert the previously disclaimed jurisdiction. See Washington —

v. Yakima Indian Nation, 439 U.S. at 478-493; Goldberg, Public

Law 280: the Limits of State Jurisdiction over Reservation Indians,

22 UCLA L. Rev. 535, 570 (1975) (“the disclaimers are more than

protection against Indian loss of real property interests; they are

congressional insulation against state jurisdiction over reservation

Indians”).

Arizona has such a disclaimer in its constitution, and has not

accepted criminal jurisdiction over Indian country pursuant to Pub-

lic Law 280. See McClanahan v. State Tax Comm’n, 411 U.S. 164,

167 (1973); Williams v. Lee, 358 U.S. at 222-223, n.10.

18

tion.** Significantly, that consent must be “manifested

by majority vote of the enrolled Indians [not just mem-

bers of the “home tribe’] within the affected area of

Indian country.” **

In short, the history of federal dealings with Indians

in Indian country demonstrates that although Congress

has authorized prosecution in the federal courts of major

crimes committed by Indians against Indians in Indian

country, it has at the same time consistently recognized

and preserved the pre-existing tribal authority to prose- -

cute offenses not enumerated in the Major Crimes Act

committed in Indian country by one Indian against the

person or property of another. See Donnelly v. United

States, 228 U.S. at 270-272; United States v. Wheeler,

435 U.S. at 322-323. That preserved tribal authority has

not been limited to the situation in which the offender is

a member of the sanctioning tribe. Moreover, it has been

consistently recognized that congressional action is neces-

sary to give a State jurisdiction over any offenses in In-

dian country by or against Indians. Congress has con-

sented to the exercise of that jurisdiction only when a

State has indicated that it is able and willing to accept

the responsibility it entails—as Arizona has not *°—and

the affected Indians have agreed. Unless both entities are

satisfied that the State can adequately maintain law and

order on the reservation, the primary responsibility for

doing so is to remain with the tribal courts, subject only

23 Although the 1953 Act contained no express consent require-

ment, it did except certain tribes from its jurisdictional grant to

the named States. The excepted tribes had opposed being subjected

to state jurisdiction because, inter alia, of expressed fears that the

State lacked the resources to provide for adequate law enforcement

or that Indians would not be treated fairly in state courts. S. Rep.

No. 699, supra, at 6-7.

*4 The statute also allowed a State that had acquired jurisdiction

previously under Public Law 280 to retrocede that jurisdiction to

the United States. See Kennerly v. District Court of Montana, 400

U.S. 423, 428-429 (1971).

25 See note 19, supra.

19

to the limited supplementary jurisdiction of the federal

and state governments described above.

II. THE TRIBAL COURT HAS THE PRIMARY INTER-

EST IN EXERCISING THIS JURISDICTION

Along with the consistent historical practice we have

recounted, a balancing of the pertinent interests involved

also points to the existence of tribal authority in cases

such as this.”

Although a reservation may be identified as the home

of a particular tribe or tribes, it typically will contain a

substantial number of resident Indians belonging to other

tribes. For example, 181, or 8%, of the tribally-enrolled

Indians resident on the reservation involved here, the

Salt River Pima-Maricopa Reservation, are enrolled mem-

bers of tribes other than the Pima or Maricopa Tribes.

2 Bureau of the Census, U.S. Dep’t of Commerce, 1980

Census of Population, Table 4, pt. 2, at 27 (1986) [here-

inafter 1980 Census].27 Many of these persons undoubt-

26Tn the context of Indian affairs, this Court has frequently

analyzed and balanced the relevant interests involved (usually for

purposes of preemption analysis), with particular deference to

“traditional notions of [tribal] sovereignty and * * * the federal

policy of encouraging tribal independence.” White Mountain Apache

Tribe v. Bracker, 448 U.S. 136, 144 (1980). See, e.g., Warren

Trading Post Co. v. Arizona Tax Comm’n, 380 U.S. 685 (1965) ;

Ramah Navajo School Bd. v. Bureau of Revenue, 458 U.S. 832

(1982); California v. Cabazon Band of Mission Indians, 480 U.S.

202, 216-218 (1987); Cotton Petroleum Corp. v. New Mexico, 109

S. Ct. 1698, 1707 (1989).

27 Table 4 provides enrollment data for 201 of 278 listed tribes.

Our analysis of these data indicates that at least 24,450 enrolled

Indians live on reservations of tribes other than those in which they

are enrolled. Based on those data and on information provided by

the Department of the Interior, we note that the percentage of

nonmember residents varies greatly from reservation to reserva-

tion. Although no resident members of enrolled tribes other than

the “home tribe” are reported for three reservations, nine others

have populations in which more than 40% of the enrolled residents

are members of tribes other than the “home tribe”. One quarter

of the reservations with reported enrollment figures, i.e. 50 reserva-

tions, show more than 18% of their enrolled tribe residents are

20

edly have significant, long-term associations with the

“home tribe” and the reservation, for example as spouses

and children of tribe members—a matter of particular

significance to traditional tribal court jurisdiction over

offenses involving domestic violence. In addition, there

is a substantial amount of intertribal visiting, especially

at annual pow-wows. See S. Levine & N. Lurie, The

American Indian Today 121 (1968); M. Wax, Indian

Americans: Unity and Diversity 148-151 (1971). Thus,

even if a reservation is identified with a particular “home

tribe,” members of other tribes are likely to constitute

a significant fraction of its residents or possible

offenders.”

The existence of this substantial nonmember Indian

population is important for two reasons. First, Indian

country is often located in remote and sparsely populated

areas.** In such areas, state law enforcement capacity is

members of tribes other than the “home tribe’. Although the Navajo

reservation, which is by far the largest one, has a very low per-

centage—2%—of nonmember enrolled Indian residents, that per-

centage represents 1,920 persons. Overall, of the reservations for

which enrollment figures are given, the average percentage of non-

member resident Indians is about 14%; fully one half of all tribes

have 10% or more of nonmember resident Indians.

28 The other categories of “Indian country”—dependent Indian

communities and allotments (see note 14, swpra)—may not even

‘nave a “home tribe.” The term “dependent Indian community” is

derived from United States v. McGowan, 302 U.S. 535 (1938),

where the Court held that the Reno Indian Colony was Indian

country for the purposes of federal laws forbidding the bringing

of liquor into Indian country. That community consisted of 28.38

acres of land bought by the federal government in 1917 and 1926

and occupied by several hundred Indians previously scattered

throughout Nevada. See United States v. John, 437 U.S. at 648.

Similarly, allotments are tracts of land held by the United States

in trust for individual Indians. See United States v. Mitchell, 445

U.S. 535, 540-546 (1980). The provision concerning allotments,

18 U.S.C. 1151(c), comes into force only when an allotment is not

within the boundaries of an Indian reservation, since it otherwise

would be included under Section 1151(a).

2 See Bureau of the Indian Affairs, U.S. Dep’t of the Interior

Indian Land Areas, Map (1971); Report on Federal, State, and

21

likely to be limited and unable to cope effectively with

the added burdens that would be imposed if state jurisdic-

tion were extended to cover non-major crimes committed

by the substantial population of nonmember Indians.*’

Federal law enforcement capacity is also likely to be

limited (see Report of the U.S. Commission on Civil

Rights, Indian Tribes: A Continuing Quest for Survival

145 (GPO 1981)), and, in any event, devoted to con-

trolling major crimes and crimes involving non-Indians.*!

The tribe, in contrast, has the primary interest in main-

Tribal Jurisdiction, Task Force Four: Federal, State, and Tribal

Jurisdiction 15-17 (Comm. Print 1976) (prepared for American

Indian Policy Review Commission) [hereinafter Task Force Re-

port}; cf. Bureau of the Census, U.S. Dep’t of Commerce, We, The

First Americans 13-14 (of housing units on reservations in 1980,

24% lacked complete plumbing facilities, 56% lacked a telephone,

and 16% lacked electric lighting).

Of course, not all reservations are isolated. For example, the

Port Madison Indian Reservation, the residence of the Suquamish

Indian Tribe, respondent in Oliphant, is located on Puget Sound

opposite Seattle; the Court’s description of the reservation (435

U.S. at 191 & n.1) suggests that it is in many respects almost a

suburb of Seattle. Although the Salt River Pima-Maricopa Indian

Community involved here has a far greater Indian population than

the Port Madison Reservation (see 1980 Census, Table 4, pt. 2, at

25, 27), it is also quite close to an urban center—Phoenix, Arizona.

Indian Land Areas Map, supra. Nevertheless, we suggest that the

isolated Indian community is more the norm than the “suburban”

one.

°“°TIn situations where the State is able to assume the added

burdens and the tribe consents to that assumption, Congress has

provided in Public Law 280 a means for the transfer of the au-

thority to the State.

31 Of course, in light of Oliphant, federal authorities must assume

the general law enforcement responsibility where the offense is

committed by a non-Indian against an Indian. That does not, how-

ever, mean that federal courts and prosecutors are best suited to the

job (see Oliphant, 435 U.S. at 212; Task Force Report 37-38), or

that federal] jurisdiction should be extended, despite the direct stat-

utory prohibition in 18 U.S.C. 1152, to cover all offenses committed

by one Indian against another.

22

taining law and order within its domain, and reliance

upon the tribal courts to do so furthers the federal inter-

est in strengthening and improving tribal self-government.

See White Mountain Apache Tribe v. Bracker, 448 U.S.

at 143-144; Santa Clara Pueblo v. Martinez, 436 U.S. 49,

62 (1978) .*

Moreover, in light of the historical evidence that the

federal government has never asserted jurisdiction, out-

side the Major Crimes Act, over crimes by Indians against

the person or property of other Indians in Indian country,

and that state jurisdiction over such crimes does not

exist, there is no assurance that non-major offenses by

nonmember Indians against other Indians are presently

subject to any legal sanctions if they cannot be prosecuted

by the tribe.** This possible jurisdictional gap distin-

32 In recognition of the impracticality of relying solely on federal

or state law enforcement, the Department of the Interior has, by

regulation, established “courts of Indian offenses” on certain res-

ervations. 25 C.F.R. Pt. 11. These courts are designed to provide

“adequate machinery of law enforcement for those Indian tribes

in which traditional agencies for the enforcement of tribal law and

custom have broken down for which no adequate substitute has

been provided under Federal or State law.” 25 C.F.R. 11.1(b).

They are, by regulation, given jurisdiction over crimes committed

“by any Indian, within the reservation or reservations for which

the court is established.” 25 C.F.R. 11.2(h).

The courts of Indian offenses were first established in 1883,

pursuant to the general authority of Rev. Stat. §§ 463 and 465, now

codified at 25 U.S.C. 2 and 9, and have continued to exist on some

reservations to the present day. See United States v. Clapor, 35

Fed. 575 (D. Ore. 1888); F. Cohen, Handbook of Federal Indian

Law 323-335 (1982). These courts have not been expressly au-

thorized by Congress, but Congress has recognized their existence

for more than 100 years. See, e.g., Section 301 of the Act of Apr.

11, 1968, Pub. L. No. 90-284, 82 Stat. 78 (25 U.S.C. 1311) (directing

the Secretary of the Interior “to recommend to the Congress * * *

a model code to govern the administration of justice by courts of

Indian offenses on Indian reservations”). This Court has also ac-

knowledged the existence of these courts. Williams v. Lee, 358 U.S.

at 222; Wheeler, 435 U.S. at 327; Oliphant, 435 U.S. at 196.

‘8 There is also the related possibility that federal prosecutors

may be motivated to avoid the gap by overcharging—bringing

23

guishes this case from the situation in Oliphant, where

the absence of tribal jurisdiction over nonIndians simply

meant that their offenses, if committed against Indians

were subject to federal law, or if committed against non-

Indians to state law. In contrast, here the lack of any

clear alternative jurisdiction means that the absence of

tribal authority to try nonmember Indian offenses would

seriously threaten the maintenance of law and order on

the reservation, and thus the health and welfare of all

residents who would suffer from lawlessness on the reser-

vation.* Cf. Brendale v. Confederated Tribes & Bands of

Yakima, 109 S. Ct. 2994, 2997, 3007, 3014 (1989) (rec-

ognizing that under Montana v. United States, 450 U.S.

544, 566 (1981), tribal retained sovereignty includes

power to exercise civil authority over non-Indians to re-

strain conduct that “threatens or has some direct effect

on the |tribe’s} * * * health or welfare’) .”*

charges under the Major Crimes Act for conduct that would nor-

mally be prosecuted under statutes with less severe penalties.

34 Tt is of course possible for Congress to fill the jurisdictional

gap by expressly delegating to the tribal courts jurisdiction over

non-major crimes committed by members of other tribes; it is our

submission that it is unnecessary for it to do so, since this jurisdic-

tion has never been removed. It is therefore unnecessary to subject

the residents of Indian country to the serious dislocations in law

and order that could be anticipated in the interim between a deci-

sion that the jurisdiction does not exist and the restoration of a

comprehensive system of criminal law enforcement.

Moreover, the express delegation procedure might arguably mean

that tribal courts would be considered an “arm of the Federal

Government” for double jeopardy purposes (see United States v.

Wheeler, 435 U.S. at 328). Tribal prosecution for a lesser included

offense could thus bar subsequent federal prosecution under the

Major Crimes Act, and “important federal interests in the prosecu-

tion of major offenders on Indian reservations would be frustrated”

(id. at 331 (footnotes omitted) ).

35 Alternatively, it could be argued that the tribe retains, as an

inherent aspect of its limited sovereignty, the right to condition the

entry of Indians into its territory on their compliance with the

tribal criminal laws, since—in order to avoid the jurisdictional gap

—that condition is essential to the preservation of the tribe’s

24

It is true that in Wheeler, 435 U.S. at 326, the Court

observed, in rejecting the double jeopardy claim of a tribe

member who had previously been convicted of a lesser

included offense by the tribe, that Indian tribes have been

divested of sovereignty in matters involving the relations

between the tribe and nonmembers of the tribe, in con-

trast to “the powers of self-government, including the

power to prescribe and enforce internal criminal laws,

* * * |which] involve only the relations among members

of a tribe. Thus, they are not such powers as would nec-

essarily be lost by virtue of a tribe’s dependent status.”

See also Montana v. United States, 450 U.S. at 564

(“exercise of tribal power beyond what is necessary to

protect tribal self-government or to control internal rela-

tions is inconsistent with the dependent status of the

tribes, and so cannot survive without express congres-

sional delegation”). But neither Wheeler nor Montana

involved a situation (1) in which Congress had consist-

ently acted on the premise that the asserted tribal juris-

diction had not been divested, (2) the State had no juris-

diction, and (3) the possibility of a jurisdictional gap

threatened essential interests in peace and security shared

by the tribe members with all other residents of the

community. We therefore submit that the dicta in those

cases should not be extended to govern the decision here.

Finally, as this Court explained in Kagama, 118 U.S.

at 384, the federal assertion of criminal jurisdiction in

Indian country was designed to protect the Indians from

their non-Indian neighbors, based on the fear that they

would not be treated fairly in state courts. That risk of

prejudice is based not on membership in any particular

peaceful enjoyment of its reservation. The Community need not and

obviously cannot tolerate within its boundaries the presence of

persons who are beyond the reach of any law for a substantial

category of offenses. Subjecting non-Indians to that same condi-

tion is not essential, because they are subject either to state or

federal law for their offenses. Cf. Brendale v. Confederated Tribes,

109 S. Ct. at 3009-3017 (opinion of Stevens, J., joined by O’Connor,

J.) (relying for determination of tribal jurisdiction on existence of

tribal power to exclude).

25

tribe, but simply on the individual’s perceived “Indian-

ness”’.

In enacting Public Law 280, Congress evidently con-

cluded that the risk of prejudice had subsided so that

States willing to devote the resources to extend their

jurisdiction to Indian country should be permitted to do

so. Nevertheless, the express exclusion of certain Indian

country (see note 23, supra) and the amendment of the

Public Law 280 procedures to require the affected Indians’

consent to the assumption of state jurisdiction suggest

that Congress also wished to leave to the Indian them-

selves the ultimate decision as to whether State authorities

could be relied on to provide for fair and adequate en-

forcement authority on a particular reservation.” Ari-

zona has not to date concluded that it is ready to accept

Public Law 280 jurisdiction, and thus there has been no

consent by the majority of the Indians affected to the

assertion of such jurisdiction. Petitioner Duro’s claims

that it would be unfair to subject him to tribal court

jurisdiction must accordingly be balanced against this

history of reluctance to subject Indians to state court

jurisdiction. To those claims we now turn.

Ill. APPLYING TRIBAL COURT JURISDICTION TO

PETITIONER DOES NOT DEPRIVE HIM OF ANY

CONSTITUTIONAL OR STATUTORY RIGHT

Petitioner contends that subjecting him to the juris-

diction of the tribal court of a tribe different from his

own, in circumstances in which a similarly situated non-

Indian would not be subject to that court’s jurisdiction,

denies him equal protection of the laws and due process.

Indian tribes are “unconstrained by those constitu-

tional provisions framed specifically as limitations on

federal or state authority.” Santa Clara Pueblo v. Mar-

tinez, 486 U.S. 49, 56 (1978); see Talton v. Mayes, 163

36 As recently as 1976, the Task Force Report stated at 15 as the

“almost universal Indian viewpoint” that existing conditions contin-

ued to confirm the observation in Kagama, 118 U.S. at 384: “Be-

cause of the local ill feeling, of the people, States where [the Indian

tribes] are found are often their deadliest enemies.”

26

U.S. 376 (1896). Accordingly, in Section 2 of the Indian

Civil Rights Act of 1968, 25 U.S.C. 1302, Congress

enacted comparable standards to regulate tribal actions;

25 U.S.C. 1302(8) requires that no tribe shall “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.” The equal protection pro-

vision requires the tribal court to treat everyone within

its jurisdiction equally; but it does not require the tribal

court to treat one group within its jurisdiction like an-

other group that is not. So long as the tribal court

treats all Indians equally, it does not violate the Indian

Civil Rights Act equal protection provision simply be-

cause its jurisdiction extends to Indians who are not

tribe members but not to non-Indians. To the extent that

a tribal court treats non-Indians differently than it does

nonmember Indians, it does so only because the former

are not within its jurisdiction under Oliphant. Petitioner,

who has not yet been tried by the tribal court, does not

claim that he has in fact been deprived of due process

by the court’s procedures. If he has such a claim at some

point, he has a remedy for any violation of the require-

ments of basic fairness which Congress has imposed on

the Indian tribes in 25 U.S.C. 1302 through a writ of

habeas corpus in federal court under 25 U.S.C. 1303.

Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65-66

(1978) .*

Accordingly, any equal protection or due process issues

in this case arise under the Federal Constitution, not the

Indian Civil Rights Act. Petitioner is treated differently

87 There has been considerable criticism of the fairness of some

tribal courts. See, e.g. S. Brakel, American Indian Tribal Courts,

in Indians and Criminal Justice 147 (L. French ed. Allanheld,

Osmun & Co. 1982); ef. Greywater v. Joshua, 846 F.2d 486, 488-489

(8th Cir. 1988). Moreover, Congress is considering a proposed

amendment of the Indian Civil Rights Act of 1968 to provide for a

right of action in federal court for individuals aggrieved by viola-

tions of the Act (S. 517, 101st Cong., Ist Sess. (1989), 135 Cong.

Rec. $2186-S2192 (daily ed. Mar. 6, 1989).

<taee

27

for purposes of federal jurisdiction than a similarly sit-

uated nonIndian, simply because he is a member of an

Indian tribe. That difference in treatment has not in

fact prejudiced petitioner, who is charged with a viola-

tion of the tribal code of misdemeanors,** rather than the

homicide with which he was originally charged in federal

court. Pet. App. B 1138. Cf. Antelope, 430 U.S. at 644,

where the application of federal law to an Indian resulted

in harsher treatment than that accorded a nonIndian

subject to state law.”

Petitioner is subject to tribal court jurisdiction not be-

cause he is an Indian by race, but because he is an en-

rolled member of the Torres-Martinez Band of Cahuilla

Mission Indians. That membership is a sufficient indica-

tion of his self-identification as an Indian, with tradi-

tional Indian cultural values, to make it reasonable to

subject him to the tribal court system, which within the

limitations of fundamental fairness imposed by the In-

dian Civil Rights Act, implements traditional Indian

values and customs. That identification carries with it

benefits as well as burdens—because of it, petitioner is in

many respects treated somewhat differently than non-

Indians.*° Moreover, petitioner’s tribal identification is

38 Sentences imposed by tribal courts may not exceed one year in

jail and a fine of $5000. 25 U.S.C. 1302(7).

3® The Court in Antelope emphasized that Antelope was treated

the same as all citizens in federal enclaves, and thus “enjoy[ed] the

same procedural benefits and privileges as all other persons within

federal jurisdiction” (430 U.S. at 648). To the extent petitioner’s

claim is that he should not be excluded from federal court because

he is an Indian, it is essentially the converse of the claim in Ante-

lope. Nevertheless, as we explain below, the Court’s analysis in

Antelope of the rationale for distinctive treatment of Indians

applies as well to petitioner’s claim.

40 For example, Indian Health Services benefits are available

to all enrolled Indians, and their minor children, living within

a service area—not just to members of the tribe located within

that area. 42 C.F.R. 36.12(a). Similarly, contractors under the

Indian Self-Determination and Education Assistance Act are re-

quired to give preferences for employment, training, and subcon-

28

voluntary, since he can at any time formally resign his

membership in the tribe, and thenceforth be treated like

any other nonIndian citizen. See Antelope, 430 U.S. at

646-647 n.7.

There is, of course, an ancestral element in the tribal

identification; petitioner cannot become a member of the

Pima-Maricopa Tribe. There is, however, nothing funda-

mentally unfair in subjecting him, in common with other

resident Indians, to the jurisdiction of the tribal courts

of that tribe, so long as those courts- comply with the

requirements of the Indian Civil Rights Act. Petitioner’s

position is not fundamentally different from that of the

alien resident in a foreign country, who must comply

with the foreign country’s criminal laws and subject

himself to the jurisdiction of its courts, even though he

cannot participate in its political processes.‘

tracting to enrolled Indians generally, withovt regard to tribal

membership. 25 U.S.C. 450b, 450e(b), 25 C.F.R. 271.444. With

respect to certain other Interior Department contracts, 25 U.S.C. 47

mandates a preference for Indians generally, and the regulations

implementing that provision specifically prohibit discrimination

based on tribal affiliation. 48 C.F.R. 1452.204-71(a). Regulations

of the Office of Federal Contract Compliance also provide that a

federal contractor who gives a preference to Indians for employment

on or near a reservation is not in violation of the equal employment

opportunity clause of its contract so long as such a preference does

not discriminate on the basis of tribal affiliation. 41 C.F.R. 60-

1.5(6).

The Indian preference policy is intended, in part, to give Indians

greater participation in their own self-government and to reduce

the negative effect of having non-Indians administer matters that

affect tribal life. Morton v. Mancari, 417 U.S. 535, 541-542 (1974).

These preferences tend to increase the number of nonmember In-

dians residing on Indian reservations. A ruling that many of the

persons drawn to the reservation by the Indian preference policy

are immune from tribal criminal law would tend to undermine the

efficacy of this policy in promoting tribal self-government.

41 Although most such resident aliens can, unlike petitioner,

anticipate that at some point they can be admitted to citizenship,

the requirement of compliance with the local law is not dependent

on that anticipation. Thus, persons in this country on student

visas or on special work permits may never become eligible for

29

This Court has repeatedly recognized that the federal

government may pass laws treating Indians differently

from non-Indians, and that those laws do not constitute

discrimination based on race, but are based on the peculiar

historical and legal relationship between the United States

and the Indian tribes.* Tribal jurisdiction over non-

member Indians reflects the patterns in 18 U.S.C. 1151-

1153 and likewise does not constitute invidious racial

discrimination.

In Morton v. Mancari, supra, non-Indian employees

of the bureau of Indian Affairs challenged the employ-

ment preference for Indians in the Bureau pursuant to

Section 1 of the Indian Reorganization Act of 1934,

ch. 576, 48 Stat. 984 (25 U.S.C. 461). This Court upheld

the preference as violating neither the Equal Employment

Opportunity Act of 1972 nor the Due Process Clause of

the Fifth Amendment. The Court stated, 417 U.S. at 554

(footnote omitted) :

The preference, as applied, is granted to Indians not

as a discrete racial group, but, rather, as members

of quasi-sovereign tribal entities whose lives and ac-

tivities are governed by the BIA in a unique fashion.

* * * In the sense that there is no other group of

people favored in this manner, the legal status of

the BIA is truly sui generis.

Significantly, the Court in Mancari approved the pref-

erence for any enrolled member of an Indian tribe, re-

gardless of particular tribal membership, for BIA em-

ployment with his own tribe or another. The decision

thus stands for the proposition that it is proper for

relevant purposes to treat tribal Indians as a group dif-

ferently from other persons, and that it is not necessary

citizenship, but are nevertheless subject to our laws and their en-

forcement processes.

42 See Wiliiams v. Lee, 358 U.S. 217, 219 n. 4 (citations omitted) :

“The Federal Government’s power over Indians is derived from

Art. I, § 8, cl. 3, of the United States Constitution, and from the

necessity of giving uniform protection to a dependent people.”

30

that distinctions be drawn on the basis of membership in

the particular tribe that is specifically involved.

Similarly, in Antelope, 430 U.S. at 646-647 & n.7, this

Court observed that 18 U.S.C. 1151 and 1153 apply to

enrolled tribal members, not simply to members of the

“Indian race”; they are accordingly “based neither in

whole nor in part upon impermissible racial classifica-

tions.” That rationale fully applies here.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

ROBERT L. KLARQUIST

EDWARD J. SHAWAKER

Attorneys

MARTIN L. ALLDAY

Solicitor

WILLIAM G. LAVELL

Associate Solicitor

Scott KEEP

Assistant Solicitor

DAVID C. ETHERIDGE

Attorney

Department of the Interior

OCTOBER 1989

wv U. S. GOVERNMENT FRINTING OFFice; 1989 241699 539

— ee | -

ee ee a ete