Albert Duro v. Edward Reina, Chief of Police, Salt River Department of Public Safety, Salt River Pima-Maricopa Indian Community

The question before us is whether an Indian may be subject to the criminal jurisdiction of the court of a tribe of which neither he nor his victim was a member. The district court ordered officials of an Indian tribe to discharge appellee from custody and to abstain from further criminal prosecution. We conclude that the tribe properly asserted criminal jurisdiction over appellee because he is an Indian, albeit an Indian enrolled in a different tribe. We therefore vacate and remand.

I.

FACTS AND PROCEEDINGS BELOW

Appellee Albert Duro, petitioner below, is an enrolled member of the Torrez-Martinez band of Mission Indians. Duro was born in Riverside, California. He has lived all but one year of his life outside of his tribal reservation. From approximately March 1984 to approximately June 15, 1984, Duro resided within the Salt River Indian Reservation (Reservation). During this time, Duro lived with his girlfriend in her family home. His girlfriend is a member of the Salt River Pima-Maricopa Indian Community (Community or tribe). Duro worked for the PiCopa Construction Company. The Community owns the company. However, the company does not require its employees either to reside…

dissenting:

I respectfully dissent. Oliphant should govern this case. Two commentators re *1365 cently have concluded that, for purposes of determining the criminal jurisdiction of tribal courts, Olipkant and the history of relevant treaties and statutes suggest that nonmember Indians and non-Indians be treated the same. Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, 33 Stan.L.Rev. 979, 1022 n. 251 (1981); see Comment, Jurisdiction over Nonmember Indians on Reservations, 1980 Ariz.St.LJ. 727, 737-49. The Supreme Court made this conclusion explicit in United States v. Wheeler, 435 U.S. 313, 322, 324, 326-27, 328 , 98 S.Ct. 1079, 1085, 1086, 1087-88, 1088 , 55 L.Ed.2d 303 (1978), by its emphasis of tribal sovereignty as the source of the tribe’s criminal jurisdiction over its members.

Independently of these authorities, the equal protection clause of the Indian Civil Rights Act requires affirmance of the district court. To embrace the differential treatment of non-Indians and nonmember Indians within the context of this case is to employ a classification based upon race. It is true that special treatment of Indians…

821 F.2d 1358 56 USLW 2067 Albert DURO, Petitioner-Appellee, v. Edward REINA, Chief of Police, Salt River Department of Public Safety, Salt River Pima-Maricopa Indian Community, et al., Respondents-Appellants. No. 85-1718. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 8, 1985. Decided July 9, 1987. Richard B. Wilks, Phoenix, Ariz., for respondents-appellants. John Trebon, Phoenix, Ariz., for petitioner-appellee. Rodney B. Lewis, Sacaton, Ariz., Edward G. Maloney, Jr., Seattle, Wash., for amici curiae. Appeal from the United States District Court for the District of Arizona. Before CHOY, SNEED and BRUNETTI, Circuit Judges. BRUNETTI, Circuit Judge: 1 The question before us is whether an Indian may be subject to the criminal jurisdiction of the court of a tribe of which neither he nor his victim was a member. The district court ordered officials of an Indian tribe to discharge appellee from custody and to abstain from further criminal prosecution. We conclude that the tribe properly asserted criminal jurisdiction over appellee because he is an Indian, albeit an Indian enrolled in a different tribe. We therefore vacate and remand. I. FACTS AND PROCEEDINGS…