(dissenting):

I cannot agree with either the premises or the conclusion of the majority opinion, and therefore I respectfully dissent.

As the majority points out, the question whether Indian courts may exercise jurisdiction over non-Indians has remained unanswered for almost 100 years. The reason is that no federal court has had occasion to pass on the issue since Ex parte Kenyon, 14 Fed.Cas. 353 (No. 7720 W.D.Ark.1878). The very absence of legal authority to support the contentions made on behalf of the tribal court indicates to me that the jurisdiction it attempts to exercise is novel and unusual, and certainly inconsistent with prior practice. 1 While this does not necessarily make the procedure improper, it does call for careful examination of the purpose and history of tribal courts to determine whether an assertion of jurisdiction over non-Indians is consistent with the powers granted by Congress to tribal governments during the last 100 years. Such an examination has persuaded me that Indian courts were not intended to have jurisdiction over non-Indians.

It is important to focus on the precise issue in this case. We are not considering whether Indian tribes may pass reservation ordinances, having the force of law, governing the conduct of the tribe’s members; they may. Colliflower v. Garland, 342 F.2d 369, 376 (9th Cir. 1965). Nor are we determining whether Indians have the right to exclude from the reservation nonmembers they deem undesirable; they have. Quechan Tribe of Indians v. Rowe, 531 F.2d 408, 411 (9th Cir. 1976). Nor is there any question of potential lawbreakers going unpunished, a point given special emphasis by the majority, for we have held that tribal authorities have the power to apprehend violators of state and federal law and to deliver the offenders to the appropriate authority. 2 Oriz-Barraza v. United States, 512 F.2d 1176, 1179 (9th Cir. 1975). The sole question here is whether the accused, a non-Indian suspected of having committed a violation on the reservation, may be tried for the alleged offense before an Indian tribunal.

The answer to this question is not advanced by the majority’s broad assertion that Indian tribes have inherent sovereignty presumed to exist in the absence of express congressional intent to the contrary. The broad dictum on Indian sovereignty pronounced by Chief Justice Marshall in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 560-61 , 8 L.Ed. 483 (1832), was a response to a state’s attempted invasion of tribal privileges that had express federal sanction. As pointed out in a recent survey, Supreme *1015 Court cases generally rely on the notion of tribal sovereignty in determining the extent to which states can properly exercise jurisdiction where the federal government has decreed a measure of autonomy for the tribes. Martone, American Indian Tribal Self-Government in the Federal System: Inherent Right of Congressional License? 51 Notre Dame Law. 600 , 627 (1976). The term “sovereignty,” then, is merely a veil used where the issue is, in fact, one of federal preemption of' regulation in the field of Indian affairs. Id. at 629-31 ; see McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 172 , 93 S.Ct. 1257 , 36 L.Ed.2d 129 (1973). 3

A different problem is presented when the controversy is not one involving state encroachment on a tribal privilege conferred by Congress, but is rather the exercise of tribal jurisdiction over an individual. Principles of “tribal sovereignty” developed in the preemption context simply have no application here. This court, for example, long before Congress enacted 25 U.S.C. § 1303 , did not hesitate to control the exercise of power by tribal governments by ordering the issuance of a writ of habeas corpus. Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965).

The concept of sovereignty applicable to Indian tribes need not include the power to prosecute nonmembers. This power, unlike the ability to maintain law and order on the reservation and to exclude undesirable nonmembers, is not essential to the tribe’s identity or its self-governing status. In fact, even as to tribal members, tribal courts only possess jurisdiction over petty offenses involving less than six months imprisonment and $500 fine. 25 U.S.C. § 1302 (7). Major crimes are prosecuted in federal court. 18 U.S.C. § 1153 . Therefore I do not find the doctrine of tribal sovereignty analytically helpful in this context and instead find it necessary to look directly at the applicable legislation to determine whether Congress intended the tribal courts to have the power to exercise jurisdiction over nonmembers.

As early as the turn of the nineteenth century, Congress evidenced an intention to treat offenses by Indians against each other differently from offenses involving non-Indians. Offenses in the latter category, where either the perpetrator or the victim was a non-Indian, were proscribed by specific statute. Indian Trade and Intercourse Act of March 30, 1802, ch. 13, §§ 4, 14, 2 Stat. 141 , 143-44. Offenses in the first category “were left to be dealt with by each tribe for itself, according to its local customs.” Ex parte Crow Dog, 109 U.S. 556, 571-72 , 3 S.Ct. 396, 406 , 27 L.Ed. 1030 (1883). This policy, the Court explained, reflected a recognition that it would be unfair to apply white men’s standards of justice to interactions exclusively between Indians, who belonged to a separate culture. Id. at 571 , 3 S.Ct. 396 . The Court noted, moreover, that tribal courts were an integral part of tribal self-government:

Id. at 568 , 3 S.Ct. at 404 (emphasis added).

These considerations are, of course, not applicable where a non-Indian commits a crime on a reservation. There is no danger, in trying a non-Indian in state or federal court, that he will be subjected to cultural *1016 standards to which he is not accustomed. Nor is such a trial in derogation of the tribe’s ability to control its own members.

In light of the above, silence in the Treaty of Point Elliott on the subject of tribal court jurisdiction cannot be taken as an assent to jurisdiction over all persons. Such silence, if it imparts any information at all, must be understood in light of then prevailing policies, which do not appear to have permitted jurisdiction by Indian tribes over non-Indians. 4 In earlier treaties, in fact, Congress had in certain instances specified that Indians might have jurisdiction over white men. 5 This practice changed for later treaties. 6 An opinion of the Attorney General, issued the same year in which the Treaty of Point Elliott was signed, describes negotiations on this point with an Indian tribe:

7 Op.Att’y Gen. 174, 179 (1855). The contemporary refusal to grant other Indian tribes this very power over non-Indians indicates that the federal government did not consider such power an inherent attribute of tribal sovereignty. Absence of such an empowering provision in the treaty with the Suquamish raises a strong inference that Congress did not intend them to exercise such jurisdiction.

Modern day pronouncements of both Congress and the Interior Department reflect the view that tribal court jurisdiction does not extend to non-Indians. During House and Senate debates on the Indian Civil Rights Bill, supporters of the measure consistently referred to it as limiting “the power of tribal courts in dealing with tribal members.” 7 No reference was made to the possibility that these courts might exercise *1017 jurisdiction over nonmembers. A 1970 opinion by the Interior Department Solicitor 8 flatly concluded: “Indian tribes do not possess criminal jurisdiction over non-Indians[;] such jurisdiction lies in either the state or Federal Governments.” 77 I.D. 113, 115 (1970). 9

The current federal scheme for dealing with offenses on Indian land is consistent with the premise that Indian courts do not have jurisdiction over non-Indians. The interaction of sections 1152 and 1153 of title 18 of the Code leaves little doubt on this matter.

Section 1152 makes federal law, including the Assimilative Crimes Act, applicable to Indian country. Exempted from the operation of the section are two classes of individuals: (a) Indians who have committed offenses against the person or property of another Indian and (b) Indians who have committed offenses in Indian country for which they have been punished by the local law of the tribe. This provision can be traced back more than one hundred years to the Act of March 27, 1854, ch. 26, § 3, 10 Stat. 270 . See Ex parte Crow Dog, supra, 109 U.S. at 558 , 3 S.Ct. 396 . The fact that *1018 these two exceptions extend only to situations where the crime was committed by Indians is alone a strong indication that Congress considered the residual jurisdiction of tribal courts to be limited to such offenders. 10

This inference is greatly strengthened by section 1153. That section provides an exception to the exception in section 1152 by providing that where an Indian commits, against the person or property of another Indian, one of several major listed crimes, exclusive jurisdiction for the offense lies in federal court. Sam v. United States, 385 F.2d 213, 214 (10th Cir. 1967); see Felicia v. United States, 495 F.2d 353, 354 (8th Cir.), cert. denied, 419 U.S. 849 (1974). It seems extremely anomalous that Congress would provide for exclusive jurisdiction in the federal courts for major offenses committed by Indians, but permit tribal courts to try non-Indians for those same major offenses. 11 The more reasonable inference, of course, is that Congress withdrew jurisdiction from the tribal courts to try major offenses only when these were committed by one Indian against another because it knew that tribal jurisdiction extended no further than this class of offenders. 12

Section 1165 of title 18 prohibits unauthorized entry upon Indian land for the purpose of hunting or fishing. The legislative history of that provision indicates a clear congressional understanding that tribal jurisdiction does not extend to non-Indians. And it was precisely this lack of power by Indian tribes to punish non-Indians that formed the rationale for enactment of the section.

S.Rep.No.1686, 86th Cong., 2d Sess. 2-3 (1960) (emphasis added). Accord, Letter from Roger Ernst, Assistant Secretary of the Interior, to Senator Celler, Chairman of the Senate Judiciary Committee, Feb. 13, 1958, id. at 3, 4.

I am persuaded that Indian tribal courts were not intended to have jurisdiction over non-Indians. Although Congress has never explicitly so provided, it has repeatedly acted in accord with this premise. Unlike the majority, I would not require an express congressional withdrawal of jurisdiction. A presumption in favor of any inherent, general jurisdiction for tribal courts is wholly inconsistent with the juridical relations between the federal government and the Indian tribes that has existed for the past 100 years. Viewing tribal courts in their historical and cultural context, in light of the fact that virtually no white man appears to have been tried by an Indian tribunal in the past century, congressional silence on this point can hardly be viewed as assent.

Since I do not believe that Indian courts have jurisdiction over the appellant, I would not reach his claim that he would be denied due process were such a trial to take place. I would grant the writ of habeas corpus.

. Certain tribal codes expressly prohibit the assumption of jurisdiction by the tribal court of non-Indian offenders. See, e. g., Quechan Tribe of Indians v. Rowe, 531 F.2d 408, 411 (9th Cir. 1976); 17 Navajo Tribal Code § 101 et seq.; Hearings on the Constitutional Rights of the American Indian Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 87th Cong., 2d Sess., pt. 3, at 679 (1963); id. pt. 2, at 385.

. By assaulting the tribal police officer, Oliphant was likely guilty of violating one or several of the following federal statutes: 18 U.S.C. §§ 111 , 113, 1114, 1152. See Stone v. United States, 506 F.2d 561 (8th Cir. 1974), cert. denied, 420 U.S. 978 , 95 S.Ct. 1405 , 43 L.Ed.2d 659 (1975).

. The power of Congress to divest tribes of any and all of their sovereign attributes is, of course, undisputed. For example, legislation has terminated the existence of various Indian tribes. 25 U.S.C. ch. 14.

As the Supreme Court recognized almost a century ago, only two truly sovereign entities exist at any place within the geographical limits of the United States: the federal government and the states of the union. United States v. Kagama, 118 U.S. 375, 379 , 6 S.Ct. 1109 , 30 L.Ed. 228 (1886).

. Even commentators who argue in favor of tribal court jurisdiction over non-Indians have recognized that this would be a novel practice and inconsistent with the views that have prevailed for over a century in Congress and the administrative agencies in charge of Indian affairs. M. Price, Law and the American Indian 174 (1973); see Davis, Criminal Jurisdiction Over Indian Country in Arizona, 1 Ariz.L.Rev. 62, 92-94 (1959).

Law and order regulations promulgated by the Department of the Interior for Courts of Indian Offenses are explicitly limited to offenses committed by Indians. 25 C.F.R. § 11 .-2CA-11.87NH (1975). These regulations, which were first promulgated in 1892, see Report of Commissioner of Indian Affairs, T. J. Morgan, Aug. 27, 1892, reprinted in 1 W. Washburn, The American Indian and the United States 574 (1973), have been adopted as tribal codes by various Indian tribes. See, e. g., Comment to § 1 of title 17 of the Navajo Tribal Code.

. The 1791 treaty with the Cherokees, for example, provides:

Art. VIII, 7 Stat. 39 , 40 (1791). This provision, of course, raises two separate inferences. First, the specific grant by Congress of jurisdiction over non-Indians who have settled on the reservation implies that such jurisdiction was not assumed to exist otherwise. More importantly, however, the grant of jurisdiction over certain whites only, those who have undertaken an affirmative act to affiliate themselves with the reservation, raises the strong inference that other whites were not subject to tribal jurisdiction.

. U.S. Dep’t of the Interior, Federal Indian Law 323 (1958) notes that such provisions in early treaties merely followed the practice accepted with respect to international treaties. Later treaties, however, evidenced a change in this policy.

. See Remarks of Rep. Reifel, 114 Cong.Rec. 9552-53 (Apr. 10, 1968):

It would provide for imprisonment only after a jury is requested by the defendant, (emphasis added.)

See also, Remarks of Sen. Ervin, 113 Cong. Rec. 13,473 (May 23, 1967):

(Emphasis added.)

. This Memorandum was cited with approval in 78 I.D. 229, 230 (1971). While the Interior Department has subsequently withdrawn this Memorandum, it has not published any position inconsistent therewith. In any case, the Memorandum is strong evidence of the Department’s longstanding policy in this area. See M. Price, Law and the American Indian 173 (1973).

. Accord, W. Brophy & S. Aberle, The Indian— America’s Unfinished Business 50 (1966); Newman, Jurisdiction Over Indians and Indian Land in Washington, 1 Studies in American Indian Law 232, 239 (R. Johnson ed. 1970); Note, The Indian Bill of Rights and the Constitutional Status of Tribal Governments, 82 Harv.L.Rev. 1343, 1356-57 (1969); see Com- ' ment, The “Right of Tribal Self-Government” and Jurisdiction of Indian Affairs, 1970 Utah L.Rev. 291, 298.

. I find the majority’s explanation of why this section protects Indians from double jeopardy but not non-Indians unpersuasive. Majority opinion, note 1. Far from being a simple oversight, it is, I think, strong evidence that the prevalent assumption at that time on the part of Congress was that Indian courts simply were not entitled to try and punish non-Indians. Moreover, the fact that Congress failed to correct any such “oversight” for more than 100 years is indicative that the wording accurately reflects the congressional intent.

. The Indian Civil Rights Act, 25 U.S.C. § 1302 (7), limits the penalty that may be imposed by a tribal court to 6 months imprisonment and a $500 fine. Section 1153, however, considerably antedates the 1968 Act, tracing its origins to the Indian Appropriation Act of 1885, c. 341, § 9, 23 Stat. 385 . See People v. Kagama, 118 U.S. 375 , 6 S.Ct. 1109 , 30 L.Ed. 228 (1886).

. 18 U.S.C. § 1160 provides some additional support for the proposition that Congress never assumed that Indian tribunals could exercise jurisdiction over non-Indians. That section provides for compensation for Indian victims of crimes committed by white men. In certain instances such compensation is to be paid by the United States treasury. The section provides, however, that no such compensation is to be paid where the victim “or any of the nation to which he belongs, have sought private revenge, or have attempted to obtain satisfaction by any force or violence.” Although the passage discusses possible action by the Indian nation as a whole, no mention is made of the possibility of exacting restitution or retribution in tribal court. While of course this section is not directly applicable to the problem we are considering, I find it indicative of the congressional attitude toward the possibility that non-Indians might be subjected to the scrutiny of an Indian court. This section can be traced back to the Indian Trade and Intercourse Act of 1802, ch. 13, § 4, 2 Stat. 141 , which contains the quoted language virtually verbatim. The fact that Congress has left this portion of the section unchanged while repeatedly amending other parts is indicative that failure to refer to the possibility of tribal court justice was not inadvertent.