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

851 F.2d 1136 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. As Amended June 29, 1988. 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. 2 * FACTS AND…

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-Mar-tinez 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:

The majority has substantially revised its opinion since it first appeared at 821 F.2d 1358 -64 (9th Cir.1987). It is, therefore, appropriate that my dissent be revised, particularly in light of the fact that the intervening deliberations have provided to me additional insights that have strengthened my resolve to dissent.

In my original dissent, I stated “Oli-phant should govern this case.” Id. at 1364 . That remains true, but now I am more ready to concede that it need not. The underpinning of its holding was the history of the relationship between the United States and Indian tribes generally and the Suquamish Tribe in particular. Emphasis was placed upon the fact that the tribes seldom, if ever, exercised criminal jurisdiction over non-Indians prior to the middle of this century. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 196-97 , 98 S.Ct. 1011, 1014-15 , 55 L.Ed.2d 209 (1978). The same undoubtedly cannot be said with respect to the exercise of criminal jurisdiction over Indians not members of the adjudicating tribe. Therefore, I concede that the ratio decidendi of Oliphant is not applicable to this case.

Nonetheless, Oliphant exists. Its holding that…