Duro v. Reina

In Duro v. Reina, 495 U.S. 676 (1990), the Pima-Maricopa Tribe raised the concern that if the court did not grant it criminal jurisdiction over nonmember Indians on its tribal lands, "the tribes will lack important power to preserve order on the reservation, and nonmember Indians will be able to violate the law with impunity." (Duro, supra, 495 U.S. at p. 696.) The court responded to that concern by stating that "if the present jurisdictional scheme proves insufficient to meet the practical needs of reservation law enforcement, then the proper body to address the problem is Congress, which has the ultimate authority over Indian affairs." (Id. at p. 698.) Congress did respond to the court's invitation by passing the so-called "Duro fix," which expressly specified that a tribe had criminal jurisdiction over nonmember Indians for a crime occurring on tribal lands. (See 25 U.S.C. 1301(2).) The Court confirmed that a distinction exists between Indians on the lands of another tribe and tribal members on their own lands, albeit not in the context of state taxation, when the Supreme Court considered whether the Salt River Pima-Maricopa Indian Community (a recognized tribe with an enrolled membership) had criminal jurisdiction over Duro (an enrolled member of a different tribe) to prosecute him for his alleged crime on the Salt River Reservation. (Duro, supra, 495 U.S. 676.) Analyzing the power of the Pima-Maricopa Tribe to prosecute Duro, the court reasoned that "the retained sovereignty of the tribes is that needed to control their own internal relations, and to preserve their own unique customs and social order" (Duro, supra, 495 U.S. at pp. 685-686), but this retained sovereignty to prosecute members of their own tribe was not implicated when an Indian (who could not participate in the tribal government) commits a crime on another tribe's lands. (Id. at p. 688.) In so deciding, the court restated that: "The distinction between members and nonmembers and its relation to self-governance is recognized in other areas of Indian law. Exemption from state taxation for residents of a reservation, for example, is determined by tribal membership, not by reference to Indians as a general class. We have held that States may not impose certain taxes on transactions of tribal members on the reservation because this would interfere with internal governance and self-determination. But this rationale does not apply to taxation of nonmembers, even where they are Indians: 'Nor would the imposition of Washington's tax on these purchasers contravene the principle of tribal self-government, for the simple reason that nonmembers are not constituents of the governing Tribe. For most practical purposes those Indians stand on the same footing as non-Indians resident on the reservation. There is no evidence that nonmembers have a say in tribal affairs or significantly share in tribal disbursements.' " (Id. at pp. 686-687.) The Duro court also addressed the claim, raised by the Pima-Maricopa Tribe, that the tribe could assert jurisdiction because the definition of "Indian" in various federal statutes and programs applies to all Indians without respect to membership in a particular tribe, and that the federal jurisdictional statutes applicable to Indian country used the general term "Indian" without distinguishing between members and nonmember Indians. Rejecting that claim, Duro explained: "Congressional and administrative provisions such as those cited above reflect the Government's treatment of Indians as a single large class with respect to federal jurisdiction and programs. Those references are not dispositive of a question of tribal power to treat Indians by the same broad classification. In Colville, we noted the fallacy of reliance upon the fact that member and nonmember Indians may both be `Indians' under a federal definition as proof of federal intent that inherent tribal power must affect them equally: `The mere fact that nonmembers resident on the reservation come within the definition of "Indian" for purposes of the Indian Reorganization Act of 1934 does not demonstrate a congressional intent to exempt such Indians from State taxation.'" (Duro, supra, 495 U.S. at pp. 689-690.)