The Criminal Jurisdiction of Tribal Courts Over Nonmember Indians

Throughout most of the history of federal Indian law, the United States Supreme Court has expressed extraordinary deference to Congress as the principal policymaker in Indian affairs, while often filling in gaps with imaginative characterizations of congressional intent or relying implicitly on its own power to create federal common law. Judicially articulated doctrines such as that of inherent tribal sovereignty have rightly been identified as providing the legal framework which has given conceptual stability to Indian law and influenced Congress to enact some of its more humane Indian legislation. But in more recent years the balance has switched; it is now the Congress that is the protector of tribal interests against the onslaughts of a Supreme Court bent on making its own Indian policy to please its western members. In Duro v. Reina, the Supreme Court broke with history and tradition in Indian law and held that Indian tribes\u27 retained criminal jurisdiction does not extend to Indians who are not members of the particular tribe. We will first sketch the basic framework of tribal sovereignty and specifically criminal jurisdiction in Indian Country before and after Duro. Then, after reviewing the Court\u27s recent activism in setting judicial limits on tribal sovereignty, we will turn to an analysis of the recent amendments and recommendations for the future