Unspoken Assumptions: Examining Tribal Jurisdiction over Nonmembers Nearly Two Decades after Duro v. Reina Note

In a series of decisions beginning in 1978 with Oliphant v. Suquamish Indian Tribe, the Supreme Court has stripped Indian tribes of the ability to prosecute all criminal offenders within the borders of their territory. A decade after holding that non-Indians were not subject to the criminal jurisdiction of Indian tribes, the Supreme Court, in Duro v. Reina, held that Indian tribes do not possess criminal jurisdiction over Indians that were not members of the tribe. The decision created a jurisdictional void: for certain types of crimes neither the federal, state, nor tribal governments possessed the power to prosecute nonmember Indian offenders. Congress acted quickly to rectify the jurisdictional gap caused by the Court’s decision in Duro, passing legislation which became known as the “Duro Fix.” The “Duro Fix” has been upheld by the Supreme Court in the double jeopardy context, but the Court has not yet heard a case involving an equal protection or due process challenge to the legislation. If such a challenge materializes, the law could see a return to the reasoning used by the Duro Court. This Note examines the Supreme Court’s reasoning in Duro and uses nearly twenty years of anecdotal evidence, case law, and congressional findings to show that the Court relied on flawed assumptions about the nature of nonmember criminal jurisdiction in the modern tribal context. By examining the modern realities of two tribes, the Grand Traverse Band of Ottawa and Chippewa Indians and the Confederated Tribes of the Colville Reservation, this Note concludes that the Supreme Court’s reasoning in Duro is flawed and that criminal jurisdiction over nonmember Indians is crucial to tribal self-governance and maintenance of reservation life