Falling Through the Cracks After Duro v. Reina: a Close Look at a Jurisdictional Failure

• Publication year: 1991

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 15, No. 1FALL 1991

Falling Through the Cracks After Duro v. Reina: A Close Look at a Jurisdictional Failure

EricB. White(fn*)

I. Introduction

The Chief Seattle Days festival is held each summer in the state of Washington on the Suquamish Indian Reservation. This festival offers the opportunity for American Indians of different tribes to gather together and to discuss and celebrate their unique histories and traditions. Of course, at any such sizable gathering, order does not always prevail. Indeed, some of the participants will likely commit misdemeanor criminal offenses such as assault and battery, trespassing, and public intoxication. After the tribal police have made their arrests, the accused Indians who are not members of the Suquamish tribe will have their day in court, or will they?(fn1)

This question is raised by the recent United States Supreme Court decision of Duro v. Reina.(fn2) In Duro, the Court held that tribes do not have jurisdiction over minor, or misdemeanor, crimes committed on reservation by nonmember Indians.(fn3) Because tribal courts have no jurisdiction over nonmembers under the Duro decision, the question thus becomes one of who has jurisdiction over crimes committed by nonmember Indians. Under the Federal Enclaves Act, the federal government does not have jurisdiction over offenses committed by "one Indian against the person or property of another Indian . . . ."(fn4) Furthermore, barring the adoption of Public Law 280,(fn5) the state courts have no jurisdiction over any crimes whatsoever committed by Indians against Indians in Indian country.(fn6) Thus, the decision in Duro needlessly creates a jurisdictional gap over nonmember Indians committing minor crimes against other Indians on reservation land and leaves open the very real possibility that neither the federal nor the state governments will move in to fill that gap. A non-member offender at the Washington festival would simply walk away.

To understand how this jurisdictional gap over nonmember Indians needlessly came about and why neither the federal government nor the state governments will step in to exercise jurisdiction, this Note (1) looks at the complex web of law on criminal jurisdiction over Indians; (2) examines the Court's reasoning in Duro that culminated in the conclusion that tribal courts have no jurisdiction over nonmember Indians committing minor crimes on reservation; (3) identifies the analytical errors made by the Court in Duro; and (4) examines the future of jurisdiction over this class of criminal offenders.

II. Criminal Jurisdiction Over Indians

Before truly grasping the complexities of jurisdiction over crimes committed on tribal land, one must first have some sense of the status of the tribes themselves. Whatever may have been the case for the tribes prior to the European "discovery" of America, the arrival of the Europeans drastically altered tribal status. The European doctrine of "discovery" gave the discovering government the sole right to establish relations between itself and the discovered country's indigenous people.(fn7) As the Supreme Court wrote, "[i]n the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were, necessarily, to a considerable extent, impaired."(fn8) The Indians' rights were "impaired" in the sense that "discovery" rendered the tribes no longer "sovereigns" in the full sense of the word.(fn9) Rather, the tribes became "domestic dependent nations."(fn10) The tribes retained only those powers that were not limited by treaty or congressional statute or that were not inconsistent with the tribes' status as domestic dependent nations.(fn11) Criminal jurisdiction over crimes committed on reservation revolves around precisely which powers the tribes have lost and which powers they have retained.

Keeping in mind the unique status of the tribes as nations within a nation, one can construct a framework of criminal jurisdiction as currently exercised by the federal, state, and tribal governments. This jurisdictional framework is best understood by examining several factors. When crimes are committed on reservation land, jurisdictional power over these crimes shifts according to (1) whether the act was a "major" crime or a crime "other" than a major crime; (2) whether a non-Indian, a member Indian, or a nonmember Indian committed the act; and (3) whether the transgression was against an Indian or a non-Indian. For clarity, federal, state, and tribal jurisdiction are explained in turn.

A. Federal Jurisdiction

Federal jurisdiction over crimes committed on reservation(fn12) falls into the categories of "major" and "other" than major crimes. Under the Major Crimes Act, certain enumerated major crimes committed on reservation by Indians against either Indians or non-Indians fall under the exclusive jurisdiction of the federal courts.(fn13) Under the Federal Enclaves Act, any crime committed on reservation by non-Indians against Indians and any crime committed on reservation by Indians against non-Indians also fall under the jurisdiction of the federal courts.(fn14) Notably, the Enclaves Act exempts Indian against Indian crime from federal jurisdiction.(fn15)

In summary, the federal courts effectively have jurisdiction over major crimes committed on reservation by Indians against either Indian or non-Indian, over any crime committed by non-Indians against Indians, and over any crime committed by Indians against non-Indians.

B. State Jurisdiction

Despite the pervasiveness of federal jurisdiction over crimes committed on reservation, the states also enter the picture of jurisdiction over these crimes. Presently, the state courts have exclusive jurisdiction over all crimes committed on reservation by non-Indians against non-Indians.(fn16) Additionally, some states exercise jurisdiction over crimes committed on reservation under Public Law 280.(fn17) Where Public Law 280 has been adopted or mandated, the state obtains jurisdiction over all crimes committed on reservation whether by or against Indian or non-Indian.(fn18) Congress enacted this law in 1953, at least in part, as a means of erasing the distinctions between Indians and other "citizens."(fn19)

In summary, barring the adoption of Public Law 280, the states have jurisdiction over all crimes committed on reservation by non-Indians against non-Indians. A state adopting Public Law 280 has jurisdiction over all crimes committed by or against Indians or non-Indians on reservation land.

C. Tribal Jurisdiction

After sorting out the scope of federal and state jurisdiction over crimes committed on reservation, the issue remains concerning the reach of tribal jurisdiction over crimes committed on reservation. By federal statute, the maximum sentence the tribal courts can impose for any one tribal offense is limited to a $5,000 fine, a jail term of one year, or both.(fn20) Thus, the tribal courts can impose punishment only upon misdemeanor or minor crimes committed on reservation.

To determine against whom the tribal courts can impose these punishments, one must examine the seminal decision in Oliphant v. Suguamish Indian Tribe.(fn21) In Oliphant, two non-Indians were charged by tribal authorities with minor tribal crimes.(fn22) The United States Supreme Court held that the tribal courts did not have jurisdiction over crimes committed by non-Indians on reservation land.(fn23) In so holding, the Court explained that, even ignoring the lack of congressional authorization for tribal jurisdiction and ignoring the lack of tribal jurisdiction language in the relevant treaty, the exercise of tribal jurisdiction over non-Indians was inconsistent with the tribes' status as nations dependent upon the United States.(fn24) Thus, the Court set the standard that the tribes retain only that power which is consistent with that dependent status.(fn25) Because the tribal assertion of power over non-Indians is inconsistent with that status, the tribes do not share concurrent jurisdiction with the federal government over minor crimes committed by non-Indians on reservation.

The standard set out in Oliphant appeared once again in the context of jurisdiction over minor crimes committed on reservation by tribal members in United States v. Wheeler.(fn26) In Wheeler, a Navajo Tribe member was arrested by the tribal police on the Navajo reservation in Many Farms, Arizona, for disorderly conduct.(fn27) The defendant pled guilty to disorderly conduct and contributing to the delinquency of a minor. A federal court later sought to prosecute the defendant for statutory rape.(fn28) In holding that both the tribe and the federal court could prosecute for crimes arising out of the same incident, the court explained that the tribes undisputedly have the power to enforce tribal criminal laws against their own members.(fn29) Therefore, the tribes exercise concurrent jurisdiction over some minor crimes committed on reservation by their own members.(fn30) However, by speaking of tribal power solely over members, the court in Wheeler set out the possibility that the tribal courts did not possess criminal jurisdiction over non-member Indians.

III. Duro v. Reina

The Supreme Court's language in Wheeler concerning member Indians remained untested until Duro v. Reina.(fn31)...