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

860 F.2d 1463 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. Nov. 2, 1988. Appeal from the United States District Court for the District of arizona. 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. Before CHOY, SNEED and BRUNETTI, Circuit Judges. ORDER 1 Judge Choy and Judge Brunetti have voted to deny the petition for rehearing and to reject the suggestion for a rehearing en banc. Judge Sneed has voted to grant the petition for rehearing and recommends accepting the suggestion for a rehearing en banc. 2 The full court was advised of the suggestion for rehearing en banc. Fed.R.App.P. 35(b). A majority of the judges voted against en banc consideration. Judge Kozinski's dissent from the order denying rehearing en banc is attached. 3 The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected. 4 KOZINSKI,…

dissenting from the order denying rehearing en banc.

In attempting to navigate what it calls “the uncharted reaches of tribal jurisdiction,” Duro v. Reina, 851 F.2d 1136, 1139 (9th Cir.1988), a panel of our court has cast off the map and the compass. The panel’s holding — that a tribal court may exercise criminal jurisdiction over Indians who are not members of the tribe — overlooks clear Supreme Court pronouncements to the contrary, is at odds with current equal protection analysis, creates an irreconcilable conflict with the Eighth Circuit and potentially subjects criminal defendants to biased tribunals. This is a serious matter deserving serious attention. I therefore respectfully dissent from the order denying rehearing en banc.

I

Petitioner Albert Duro is a member of the Torrez-Martinez band of Mission Indians. From March 1984 to June 1984, Duro *1464 lived on the Salt River Indian Reservation, the home of the Salt River Pima-Maricopa Indian Community, a tribe in which Duro is ineligible for membership. While on the Salt River Reservation, Duro allegedly shot and killed a fourteen year old boy. Criminal complaints against Duro were filed in both federal district court and…

ORDER

Judge Choy and Judge Brunetti have voted to deny the petition for rehearing and to , reject the suggestion for a rehearing en banc. Judge Sneed has voted to grant the petition for rehearing and recommends accepting the suggestion for a rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. Fed.R.App.P. 35(b). A majority of the judges voted against en banc consideration. Judge Ko-zinski’s dissent from the order denying rehearing en banc is attached.

The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.