Duro v. Reina, No. 85-1718

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore CHOY, SNEED and BRUNETTI; BRUNETTI; SNEED
Citation851 F.2d 1136
Decision Date29 June 1988
Docket NumberNo. 85-1718
PartiesAlbert 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.

Page 1136

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.

Page 1138

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:

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 within the Reservation or to be members of the Community.

The Community is a federally recognized tribal entity that exercises authority over the Reservation. Duro is not eligible for membership in the Community. Appellant Edward Reina, respondent below, is Chief of Police of the Community's Department of Public Safety. Appellant the Honorable Relman R. Manuel, Sr., respondent below, is Chief Judge of the Indian Community Court (tribal court).

On June 18, 1984, criminal complaints against Duro were filed in both the tribal court and the United States District Court for the District of Arizona. The tribal court complaint charged Duro with discharge of a firearm within the boundaries of the Reservation, which violates the Community's Code of Misdemeanors. The district court complaint charged Duro with murder and aiding and abetting murder, which violates 18 U.S.C. Secs. 2, 1111, and 1153. The complaints pertained to the same event. On or about June 15, 1984, Duro allegedly shot Phillip Fernando Brown, a fourteen year old boy, and killed him. Brown was an enrolled member of the Gila River Indian Tribe, which resides on a separate reservation.

Federal agents arrested Duro near his home in California on June 19 and moved him to the District of Arizona. On July 25, a grand jury indicted Duro for first degree murder. The district court dismissed the indictment without prejudice on the motion of the United States. Duro was then placed in the custody of the Salt River

Page 1139

Department of Public Safety. On October 19, the trial court denied Duro's motion to dismiss for lack of criminal jurisdiction. Duro petitioned the district court for a writ of habeas corpus and/or a writ of prohibition. The court granted the requested relief on January 14, 1985. Appellants timely appealed from the judgment.
II
STANDARD OF REVIEW

Our review of a district court's decision on a petition for a writ of habeas corpus is de novo. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.)., cert. denied, 474 U.S. 841, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985). We review for an abuse of discretion the district court's decision to issue a writ of prohibition. The district court had jurisdiction over this case under the habeas corpus statute, 28 U.S.C. Sec. 2241(c)(1) & (3). Therefore the court could issue auxiliary writs in aid of its jurisdiction "in its sound judgment," within the limits set by Congress. United States v. New York Tel. Co., 434 U.S. 159, 172-73, 98 S.Ct. 364, 372, 54 L.Ed.2d 376 (1977) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 273, 63 S.Ct. 236, 239, 87 L.Ed. 268 (1942)); see Mead v. Parker, 464 F.2d 1108, 1112 (9th Cir.1972).

III
DISCUSSION

This case brings before us an issue of first impression: whether the criminal jurisdiction of a tribal court extends to an Indian who is not a member of the tribe, if he is accused of committing an offense against another nonmember Indian on the tribe's reservation. This issue concerns one of the uncharted reaches of tribal jurisdiction and presents a troubling choice between recognizing new restrictions on tribal sovereignty on the one hand, and placing an additional jurisdictional liability upon Indians not members of the tribe whose jurisdiction is in question.

In resolving questions of tribal sovereignty, we ordinarily are guided by those tribal powers historically exercised, the will of Congress as expressed in treaty and statute, and a considerable body of decisional law. Such sources, however, are of little aid in resolving the present controversy. The exercise of tribal criminal jurisdiction over nonmember Indians is virtually without historical precedent. This is not because such power did not theoretically reside in the tribes, but rather because circumstances, for other reasons, did not give rise to its exercise. The circumstances giving rise to the instant case have their roots in the present displacement of many Indian tribes, the resultant heterogeneity of present day reservation populations, and the increasing prevalence and sophistication of tribal courts. Our reliance in turn on statute and case law is restrained by the indiscriminate use by Congress and the courts of the terms "Indian" and "non-Indian"--"Indian" frequently has been used to denote "tribal member," while "non-Indian" has served as a synonym for "nonmember." Having acknowledged the complexity and moment of the question before us, we turn to its resolution.

A. Oliphant v. Suquamish Indian Tribe

At the outset we face the question of whether Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), controls this case. In that case, two non-Indians were charged with committing crimes on a reservation. The Supreme Court ruled that the tribal court did not have criminal jurisdiction over them. 1 The Court's opinion explicitly refers

Page 1140

only to non-Indians. The Court never used the term "nonmember." However, the Supreme Court in one subsequent dissent and one subsequent opinion describe Oliphant as excluding nonmember Indians as well from the criminal jurisdiction of the tribal courts. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 171-3, 102 S.Ct. 894, 919-20, 71 L.Ed.2d 21, 50-52 (1982) (Stevens, J. dissenting). This case only concerned the Indian tribe's authority to impose a mining severance tax on non-Indians who were mining on the reservation. The majority opinion on occasion, and for no apparent reason, uses the term "nonmember" when discussing the power of the tribe to tax "non-Indians." Id., 102 S.Ct. at 903-5. This change in terms has no relevance to the decision. It is clear that the Court is discussing the tribe's authority to tax "non-Indian" miners not "nonmembers."

Justice Stevens' dissent in addressing the authority of the tribe to tax the non-Indian lessees who produce oil and gas from within the tribe's reservation in dicta miscasts Oliphant as holding that tribes "have no criminal jurisdiction over crimes committed by nonmembers within the reservation." Id. at 919. In his analysis of the power of the tribe to tax, Justice Stevens interchanges the terms "nonmember" and "non-Indian." The majority rejected his analysis that the power of an Indian tribe to exclude nonmembers was the basis for imposing a tax on the nonmembers, Id. at 903, 919, 920.

In United States v. Wheeler, 435 U.S. 313, 326, 98 S.Ct. 1079, 1087, 55 L.Ed.2d 303 (1978), Justice Stewart in dictum stated that Oliphant stands for the proposition that nonmembers cannot be tried in tribal courts. The term "nonmember" was used throughout the Wheeler opinion, however, nonmember status was not in issue as Wheeler was a member of the Navajo tribe, who was tried by the Navajo tribal court for a Navajo tribal code violation. At issue was not the jurisdiction of tribal courts but the possible double jeopardy effect of a prior tribal court conviction in a federal rape prosecution. The indiscriminate use of the term "nonmember" throughout the Wheeler opinion, 435 U.S. at 322-28, 98 S.Ct. at 1085-89, amplifies the point that Justice Stewart's statement is merely dictum. To the contrary two other Supreme Court opinions describe Oliphant's holding as limited to non-Indians. See National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 853-55, 105 S.Ct. 2447, 2452-53, 85 L.Ed.2d 818 (1985) (tribal court power to exercise civil subject matter jurisdiction over non-Indians); Washington v. Confederated Tribes, 447 U.S. 134, 153, 100 S.Ct. 2069, 2081, 65 L.Ed.2d 10 (1980). 2

It appears that the Court has not used the terms non-Indian and nonmember Indian precisely. 3 The holdings of the cases

Page 1141

cited do not depend on making that distinction with regard to Oliphant. We give little weight to these casual references. Certainly we will not extend the literal holding in Oliphant on the basis of them alone.

We turn next to the reasoning in Oliphant to determine whether the holding extends to nonmember Indians as well as to non-Indians. The tribal court traced its...

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21 practice notes
  • Chilkat Indian Village v. Johnson, No. 86-4312
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 23, 1989
    ...against its own members or others whose Indian status may subject them to the internal jurisdiction of the Village. See Duro v. Reina, 851 F.2d 1136 (9th Cir.1988) (amended opinion) (nonmember Indians subject to criminal jurisdiction of reservation tribe). It is true that in some cases enfo......
  • U.S. v. Davis, Nos. 89-10415
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 24, 1991
    ...Having assumed an ongoing obligation to pay the rent, Sonnie Davis exercised partial or joint control over the premises. See Johns, 851 F.2d at 1136. Joint control "remains significant under the expectation of privacy standard." United States v. Quinn, 751 F.2d 980, 981 (9th Cir.1984), cert......
  • Duro v. Reina, No. 88-6546
    • United States
    • United States Supreme Court
    • May 29, 1990
    ...in fact, the present jurisdictional scheme proves insufficient to meet the practical needs of reservation law enforcement. Pp. 696-698. 851 F.2d 1136 (CA9 1987), reversed. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, O'CONNOR, and ......
  • United States v. Loera, No. 3:13 MJ 4039 PCT MEA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • July 1, 2013
    ...of the first exception to 18 U.S.C. § 1152. Put more simply, the nonmember Indian should be treated as a non-Indian.Duro v. Reina, 851 F.2d 1136, 1150–51 (9th Cir.1987) (emphasis added), rev'd by Duro v. Reina, 495 U.S. 676, 689–92, 110 S.Ct. 2053, 2062–63, 109 L.Ed.2d 693 (1990). See also ......
  • Request a trial to view additional results
21 cases
  • Chilkat Indian Village v. Johnson, No. 86-4312
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 23, 1989
    ...against its own members or others whose Indian status may subject them to the internal jurisdiction of the Village. See Duro v. Reina, 851 F.2d 1136 (9th Cir.1988) (amended opinion) (nonmember Indians subject to criminal jurisdiction of reservation tribe). It is true that in some cases enfo......
  • U.S. v. Davis, Nos. 89-10415
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 24, 1991
    ...Having assumed an ongoing obligation to pay the rent, Sonnie Davis exercised partial or joint control over the premises. See Johns, 851 F.2d at 1136. Joint control "remains significant under the expectation of privacy standard." United States v. Quinn, 751 F.2d 980, 981 (9th Cir.1984), cert......
  • Duro v. Reina, No. 88-6546
    • United States
    • United States Supreme Court
    • May 29, 1990
    ...in fact, the present jurisdictional scheme proves insufficient to meet the practical needs of reservation law enforcement. Pp. 696-698. 851 F.2d 1136 (CA9 1987), reversed. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, O'CONNOR, and ......
  • United States v. Loera, No. 3:13 MJ 4039 PCT MEA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • July 1, 2013
    ...of the first exception to 18 U.S.C. § 1152. Put more simply, the nonmember Indian should be treated as a non-Indian.Duro v. Reina, 851 F.2d 1136, 1150–51 (9th Cir.1987) (emphasis added), rev'd by Duro v. Reina, 495 U.S. 676, 689–92, 110 S.Ct. 2053, 2062–63, 109 L.Ed.2d 693 (1990). See also ......
  • Request a trial to view additional results

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