State-Tribal Relations

Case in Brief: Duro v. Reina (1990) 

While living on one Indian tribe’s reservation, petitioner Duro, an enrolled member of another tribe, allegedly shot and killed an Indian youth within the reservation’s boundaries. He was charged with the illegal firing of a weapon on the reservation under the tribal criminal code. After the tribal court denied Duro’s petition to dismiss the prosecution for lack of jurisdiction, he filed a habeas corpus petition in the Federal District Court. The court granted the writ, holding that assertion of jurisdiction by the tribe over a non-member Indian would constitute discrimination based on race in violation of the equal protection guarantees of the Indian Civil Rights Act of 1968, since all non-Indians are exempt from tribal courts’ criminal jurisdiction. The Court of Appeals reversed. The U.S. Supreme Court held that the retained sovereignty of the tribe as a political and social organization to govern its own affairs does not include the authority to impose criminal sanctions against a citizen outside its own membership.

Q.        What was the case about?

A.        The events giving rise to this jurisdictional dispute occurred on the Salt River Indian Reservation. It occupies approximately 49,200 acres just east of Scottsdale, Arizona. The reservation is the home of the Salt River Pima Maricopa Indian Community, a federally-recognized tribe with an enrolled membership.  The petitioner, Albert Duro, is an enrolled member of the Torres-Martinez Band of Cahuilla Mission Indians, although he resides on the Salt River reservation. As a non-member, petitioner is not entitled to vote in Pima-Maricopa elections, to hold tribal office or to serve on tribal juries. Between March and June 1984 petitioner resided on the reservation with a Pima-Maricopa woman, and worked for the PiCopa Construction Company, which is owned by the tribe.

On June 15, 1984, petitioner allegedly shot and killed a 14-year old boy within the reservation’s boundaries. The victim was a member of the Gila River Indian Tribe of Arizona, a separate tribe that occupies a separate reservation. Because the tribal criminal code is confined to misdemeanors, petitioner was charged with the illegal firing of a weapon on the reservation. After the tribal court denied petitioner’s motion to dismiss the prosecution for lack of jurisdiction, he filed a petition for habeas corpus in the United States District Court for the District of Arizona, naming the tribal chief judge and police chief as respondents.

Q.        What did the U.S. District Court say?

A.        The U.S. District Court for the District of Arizona granted petitioner’s writ, holding that assertion of jurisdiction by the tribe over an Indian who was not a member would violate the equal protection guarantees of the Indian Civil Rights Act of 1968. Under previous U.S. Supreme Court holdings that established that tribal courts have no criminal jurisdiction over non-Indians, the District Court reasoned that to subject a non-member Indian to tribal jurisdiction where non-Indians are exempt would constitute discrimination based on race. The Court held that non-member Indians have no greater right to participation in tribal government than non-Indians, and no lesser fear of discrimination in a court system that bars the participation of their peers.

Q.        What did the U.S. Court of Appeals say?

A.        A divided panel of the Court of Appeals for the Ninth Circuit reversed. The tribes, it held, retain jurisdiction over minor crimes committed by Indians against other Indians “without regard to tribal membership.” The Court of Appeals rejected petitioner’s equal protection claim under the Indian Civil Rights Act of 1968. It found no racial classification in subjecting petitioner to tribal jurisdiction. The Court justified tribal jurisdiction over petitioner based on his significant contacts with the Pima-Maricopa Community, such as residing with a member of the tribe on the reservation and his employment with the tribe’s construction company. The need for effective law enforcement on the reservation provided a rational basis for the classification.

As a final basis for its result, the Court of Appeals stated that the failure to recognize tribal jurisdiction here would create a “jurisdictional void.” To treat petitioner as a non-Indian for jurisdictional purposes would thwart the exercise of federal criminal jurisdiction over the misdemeanor because, as the court saw it, the relevant federal criminal statute would not apply to this case due to an exception for crimes committed “by one Indian against the person or property of another Indian.” This would leave the crime subject to only the state authorities, which had made no effort to prosecute petitioner, and might lack the power to do so.

Q.        What did the U.S. Supreme Court say?

A.        The U.S. Supreme Court held that the retained sovereignty of an Indian tribe did not include criminal jurisdiction over non-member Indians on its reservation, despite a pattern of federal criminal legislation classifying Indians, rather than members, for jurisdictional purposes.

The Court explained that the exercise of criminal jurisdiction subjects a person not only to the adjudicatory power of the tribunal, but also to the prosecuting power of the tribe, and involves a direct intrusion on personal liberties.

The Court decided that tribes, as domestic dependent sovereigns, had no power to exercise criminal jurisdiction over Indians who were not members of the tribe.

Q.        What does this ruling mean for other states and tribes?

A.        The United States Congress promptly overturned this ruling by the U.S. Supreme Court, recognizing and affirming “the inherent power of Indian Tribes to exercise criminal jurisdiction over all Indians.” The “Duro Fix” as it’s known, was a repeal of the holding in this case and has been codified at 25 U.S.C. § 1301(2), (3) (2000).

The “Duro fix” is not a delegation but a sort of reaffirmation of the inherent sovereign authority of tribes. It appears that Congress wrote the statute to contradict the Court’s historical account, namely that tribes never lost their inherent criminal jurisdiction over non-member Indians.

Thus, tribal exercise of power over Indians has been, and still is extensive. Tribes continue to exercise criminal jurisdiction over non-member as well as member Indians.

Case Citation:
Duro v. Reina, 495 U.S. 676 (1990).

For More Information:
Contact Andrea Wilkins of NCSL's State-Tribal Relations Project at 303-856-1558 or State-Tribal Relations Program.

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