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A case which has launched a thousand debates and discussions, Duro v. Reina
holds that an Indian tribe has no inherent criminal
jurisdiction over non-member Indians. Common sense would suggest that
a person who commits a crime within a particular jurisdiction be held
accountable in that venue. However, the court takes a view built
more on cultural ethnocentrism rather than legal pragmatism.
Primarily built upon on Oliphant v. Suquamish
Indian Tribe US 435 191 (1978), Duro v. Reina constitutes a direct
erosion of tribal sovereignty based on the argument that tribal governments,
by virtue of their status as tribal governments, do not possess the
same characteristics as United States governments.
As their primary example, since non-member
Indians cannot vote in tribal elections, hold office, sit on a
tribal jury, or otherwise participate in Suquamish tribal affairs,
asserting criminal jurisdiction over him or her without consent would constitute
an unwarranted intrusion into his or her personal liberties as a United
States citizen.
This ruling effectively blames tribal governments for being tribal
governments--a blatantly prejudiced reversal of the United States
government's support and committment to Indian self-determination.
Executive orders and congressional intent of legislation such as
the Indian Civil Rights Act of 1968 clearly take into account
the differences in characteristics of tribal governments.
But the court's ruling suggests that tribal governments should lose what
makes them distinct in order to be treated with the same
respect a city or state government has when a non-resident
steps foot in their jurisdiction. In effect, Indian laws are only good
enough for the Indians who voluntarily adhere to them. Everyone
else's laws, well
we ought to respect them.
At the same time, the decision leaves the door open for tribes
to assert jurisdiction based on treaty provisions or congressional
delegation. In fact, Congress did respond to the jurisdictional void
created by this decision with a piece of legislation known as the
"Duro fix" 25 USC Sec 1301 which effectively delegates criminal jurisdiction over
non-members to Indian tribes.
More recently, the case of Russell Means v. The District Court
of the Chinle Judicial District, Navajo Nation Supreme Court 1999
responds to the jurisdictional void by asserting criminal jurisdiction over
a non-member Indian through exercise of the 1868 Treaty between the Navajo
Nation and the United States.
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