NCJ Number
161653
Journal
American Indian Law Newsletter Volume: 23 Issue: 1 Dated: (August 1990) Pages: 1-6
Date Published
1990
Length
6 pages
Annotation
This article examines issues of tribal court jurisdiction raised by the U.S. Supreme Court's decision in Duro v. Reina (1990).
Abstract
In Duro v. Reina, the Court held that tribal courts had lost their inherent criminal jurisdiction over nonmember Indians "because of their dependent status," using the analysis and reasoning of Oliphant v. Suguamish Indian Tribe (1978). More important, the Court used some broad language about tribal sovereignty that may undercut tribal sovereignty as well as Federal power to deal with Indians as a class. For purposes of a least criminal jurisdiction and for other purposes, the Court has effectively said that Indians living on reservations who are not enrolled in the host tribe may simply not be Indians. The Duro decision has both immediate and long-term consequences. The decision is retroactive; this means that it applies to defendants who have already been convicted and are still serving time in jail. These defendants must be released to give effect to the Court's decision. The problem of keeping peace on the reservations in the aftermath of the decision is the greatest problem tribal law enforcement officials face. The State courts are set up to prosecute minor crimes, but there are serious questions as to whether States can legally prosecute crimes between nonmember Indians on the reservation. Some State courts have already held that they do not have jurisdiction. Long-term solutions are being discussed, including some that require Federal legislation. Some legislative proposals would authorize tribal courts to exercise jurisdiction over nonmembers, authorize intertribal compacts on jurisdiction, and clarify inherent authority. Some proposed interim measures are also described.