We address in this case whether an Indian tribe may assert criminal jurisdiction over a defendant who is an Indian but not a tribal member. We hold that the retained sovereignty of the tribe as a political and social organization to govern its own affairs does not include the authority to impose criminal sanctions against a citizen outside its own membership.
The events giving rise to this jurisdictional dispute occurred on the Salt River Indian Reservation. The reservation was authorized by statute in 1859, and established by Executive Order of President Hayes in 1879. It occupies some 49,200 acres just east of Scottsdale, Arizona, below the McDowell Mountains. The reservation is the home of the Salt River Pima-Maricopa Indian Community, a recognized Tribe with an enrolled membership. Petitioner in this case, Albert Duro, is an enrolled member of another Indian Tribe, the Torres-Martinez Band of Cahuilla Mission Indians. Petitioner is not eligible for membership in the Pima-Maricopa Tribe. As a nonmember, he is not entitled to vote in Pima-Maricopa elections, to hold tribal office, or to serve on tribal juries. Salt River Pima-Maricopa Indian Community Code of Ordinances §§ 3-1, 3-2, 5-40, App. 55-59.
Petitioner has lived most of his life in his native State of California, outside any Indian reservation. Between March and June 1984, he resided on the Salt River Reservation with a Pima-Maricopa woman friend. He worked for the PiCopa Construction Company, which is owned by the Tribe.
On June 15, 1984, petitioner allegedly shot and killed a 14-year-old boy within the Salt River Reservation boundaries. The victim was a member of the Gila River Indian Tribe of Arizona, a separate Tribe that occupies a separate reservation. A complaint was filed in United States District Court charging petitioner with murder and aiding and abetting
The District Court granted the writ, holding that assertion of jurisdiction by the Tribe over an Indian who was not a member would violate the equal protection guarantees of the Indian Civil Rights Act of 1968, 25 U. S. C. § 1301 et seq. Under this Court's holding in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), tribal courts have no criminal jurisdiction over non-Indians. The District Court reasoned that, in light of this limitation, to subject a nonmember Indian to tribal jurisdiction where non-Indians are exempt would constitute discrimination based on race. The court held that respondents failed to articulate a valid reason for the difference in treatment under either rational-basis or strict-scrutiny standards, noting that nonmember Indians have no greater right to participation in tribal government than non-Indians, and no lesser fear of discrimination in a court system that bars the participation of their peers.
A divided panel of the Court of Appeals for the Ninth Circuit reversed. 821 F.2d 1358 (1987). Both the panel opinion and the dissent were later revised. 851 F.2d 1136 (1988). The Court of Appeals examined our opinion in United States v. Wheeler, 435 U.S. 313 (1978), decided 16 days after Oliphant, a case involving a member prosecuted by his Tribe in which we stated that tribes do not possess criminal jurisdiction over "nonmembers." The Court of Appeals concluded that the distinction drawn between members and nonmembers of a tribe throughout our Wheeler opinion was "indiscriminate," and that the court should give "little weight to these casual references." 851 F. 2d, at 1140-1141. The court also found the historical record "equivocal" on the question of tribal jurisdiction over nonmembers.
The Court of Appeals then examined the federal criminal statutes applicable to Indian country. See 18 U. S. C. §§ 1151-1153. Finding that references to "Indians" in those
The Court of Appeals rejected petitioner's equal protection argument under the Indian Civil Rights Act of 1968. It found no racial classification in subjecting petitioner to tribal jurisdiction that could not be asserted over a non-Indian. Instead, it justified tribal jurisdiction over petitioner by his significant contacts with the Pima-Maricopa Community, such as residing with a member of the Tribe on the reservation and his employment with the Tribe's construction company. The need for effective law enforcement on the reservation provided a rational basis for the classification. Id., at 1145.
As a final basis for its result, the panel said that failure to recognize tribal jurisdiction over petitioner would create a "jurisdictional void." To treat petitioner as a non-Indian for jurisdictional purposes would thwart the exercise of federal criminal jurisdiction over the misdemeanor because, as the court saw it, the relevant federal criminal statute would not apply to this case due to an exception for crimes committed "by one Indian against the person or property of another Indian." See 18 U. S. C. § 1152. This would leave the crime subject only to the state authorities, which had made no effort to prosecute petitioner, and might lack the power to do so. 851 F. 2d, at 1145-1146.
Judge Sneed dissented, arguing that this Court's opinions limit the criminal jurisdiction of an Indian tribe to its members, and that Congress has given the Tribe no criminal jurisdiction over nonmembers. He reasoned that the federal criminal statutes need not be construed to create a jurisdictional
Between the first and second sets of opinions from the Ninth Circuit panel, the Eighth Circuit held that tribal courts do not possess inherent criminal jurisdiction over persons not members of the tribe. Greywater v. Joshua, 846 F.2d 486 (1988). Due to the timing of the opinions, both the Eighth Circuit and the Ninth Circuit in this case had the benefit of the other's analysis but rejected it. We granted certiorari to resolve the conflict, 490 U.S. 1034 (1989), and now reverse.
Our decisions in Oliphant and Wheeler provide the analytic framework for resolution of this dispute. Oliphant established that the inherent sovereignty of the Indian tribes does not extend to criminal jurisdiction over non-Indians who commit crimes on the reservation. Wheeler reaffirmed the longstanding recognition of tribal jurisdiction over crimes committed by tribe members. The case before us is at the intersection of these two precedents, for here the defendant is an Indian, but not a member of the Tribe that asserts jurisdiction. As in Oliphant, the tribal officials do not claim jurisdiction under an affirmative congressional authorization or treaty provision, and petitioner does not contend that Congress has legislated to remove jurisdiction from the tribes. The question we must answer is whether the sovereignty retained by the tribes in their dependent status within our scheme of government includes the power of criminal jurisdiction over nonmembers.
It is true that Wheeler presented no occasion for a holding on the present facts. But the double jeopardy question in Wheeler demanded an examination of the nature of retained tribal power. We held that jurisdiction over a Navajo defendant by a Navajo court was part of retained tribal sovereignty, not a delegation of authority from the Federal Government. It followed that a federal prosecution of the same offense after a tribal conviction did not involve two prosecutions by the same sovereign, and therefore did not violate the Double Jeopardy Clause. Our analysis of tribal power was directed to the tribes' status as limited sovereigns, necessarily subject to the overriding authority of the United States, yet retaining necessary powers of internal self-governance. We recognized that the "sovereignty that the Indian tribes retain is of a unique and limited character." Id., at 323.
A basic attribute of full territorial sovereignty is the power to enforce laws against all who come within the sovereign's territory, whether citizens or aliens. Oliphant recognized that the tribes can no longer be described as sovereigns in this sense. Rather, as our discussion in Wheeler reveals, the retained sovereignty of the tribes is that needed to control their own internal relations, and to preserve their own
Our finding that the tribal prosecution of the defendant in Wheeler was by a sovereign other than the United States rested on the premise that the prosecution was a part of the tribe's internal self-governance. Had the prosecution been a manifestation of external relations between the Tribe and outsiders, such power would have been inconsistent with the Tribe's dependent status, and could only have come to the Tribe by delegation from Congress, subject to the constraints of the Constitution.
The distinction between members and nonmembers and its relation to self-governance is recognized in other areas of Indian law. Exemption from state taxation for residents of a reservation, for example, is determined by tribal membership, not by reference to Indians as a general class. We have held that States may not impose certain taxes on transactions of tribal members on the reservation because this would interfere with internal governance and self-determination. See Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 (1976); McClanahan v. Arizona Tax
Similarly, in Montana v. United States, 450 U.S. 544 (1981), we held that the Crow Tribe could regulate hunting and fishing by nonmembers on land held by the Tribe or held in trust for the Tribe by the United States. But this power could not extend to nonmembers' activities on land they held in fee. Again we relied upon the view of tribal sovereignty set forth in Oliphant:
It is true that our decisions recognize broader retained tribal powers outside the criminal context. Tribal courts, for example, resolve civil disputes involving nonmembers, including non-Indians. See, e. g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65-66 (1978); Williams v. Lee, 358 U.S. 217, 223 (1959); F. Cohen, Handbook of Federal Indian Law 253 (1982 ed.) (hereafter Cohen) ("The development of principles governing civil jurisdiction in Indian country has been markedly different from the development of rules dealing
The tribes are, to be sure, "a good deal more than `private voluntary organizations,' " and are aptly described as "unique aggregations possessing attributes of sovereignty over both their members and their territory." United States v. Mazurie, 419 U.S. 544, 557 (1975). In the area of criminal enforcement, however, tribal power does not extend beyond internal relations among members. Petitioner is not a member of the Pima-Maricopa Tribe, and is not now eligible to become one. Neither he nor other members of his Tribe may vote, hold office, or serve on a jury under Pima-Maricopa authority. Cf. Oliphant, 435 U. S., at 194, and n. 4. For purposes of criminal jurisdiction, petitioner's relations with this Tribe are the same as the non-Indian's in Oliphant. We hold that the Tribe's powers over him are subject to the same limitations.
Respondents and amici argue that a review of history requires the assertion of jurisdiction here. We disagree. The historical record in this case is somewhat less illuminating than in Oliphant, but tends to support the conclusion we
Respondents rely for their historical argument upon evidence that definitions of "Indian" in federal statutes and programs apply to all Indians without respect to membership in a particular tribe. For example, the federal jurisdictional statutes applicable to Indian country use the general term "Indian." See 18 U. S. C. §§ 1152-1153. In construing such a term in the Act of June 30, 1834, ch. 161, 4 Stat. 733, this Court stated that it "does not speak of members of a tribe, but of the race generally, — of the family of Indians." United States v. Rogers, 4 How. 567, 573 (1846). Respondents also emphasize that courts of Indian offenses, which were established by regulation in 1883 by the Department of the Interior and continue to operate today on reservations without tribal courts, possess jurisdiction over all Indian offenders within the relevant reservation. See 25 CFR § 11.2(a) (1989).
This evidence does not stand for the proposition respondents advance. Congressional and administrative provisions such as those cited above reflect the Government's treatment of Indians as a single large class with respect to federal jurisdiction
Similarly, here, respondents' review of the history of federal provisions does not sustain their claim of tribal power.
We did note in Wheeler that federal statutes showed Congress had recognized and declined to disturb the traditional and "undisputed" power of the tribes over members. 435 U. S., at 324-325. But for the novel and disputed issue in the case before us, the statutes reflect at most the tendency of past Indian policy to treat Indians as an undifferentiated class. The historical record prior to the creation of modern tribal courts shows little federal attention to the individual tribes' powers as between themselves or over one another's members. Scholars who do find treaties or other sources illuminating have only divided in their conclusions. Compare Comment, Jurisdiction Over Nonmember Indians on Reservations, 1980 Ariz. S. L. J. 727, 740 (treaties suggest lack of jurisdiction over nonmembers), with Note, Who is an Indian?: Duro v. Reina's Examination of Tribal Sovereignty and Criminal Jurisdiction over Non member Indians, 1988 B. Y. U. L. Rev. 161, 170-171 (treaties suggest retention of jurisdiction over nonmembers).
The brief history of the tribal courts themselves provides somewhat clearer guidance. The tribal courts were established under the auspices of the Indian Reorganization Act
The Indian Reorganization Act allowed the expression of retained tribal sovereignty by authorizing creation of new tribal governments, constitutions, and courts. The new tribal courts supplanted the federal courts of Indian offenses operated by the Bureau of Indian Affairs. Significantly, new law and order codes were required to be approved by the Secretary of the Interior. See 25 U. S. C. § 476. The opinions of the Solicitor of the Department of the Interior on the new tribal codes leave unquestioned the authority of the tribe over its members.
Evidence on criminal jurisdiction over nonmembers is less clear, but on balance supports the view that inherent tribal jurisdiction extends to tribe members only. One opinion flatly declares that "[i]nherent rights of self government may be invoked to justify punishment of members of the tribe but not of non members." 1 Op. Solicitor of Dept. of Interior Relating to Indian Affairs 1917-1974 (Op. Sol.), p. 699 (Nov. 17, 1936). But this opinion refers to an earlier opinion that speaks in broad terms of jurisdiction over Indians generally. 55 I. D. 14, 1 Op. Sol. 445 (Oct. 25, 1934). Another opinion disapproved a tribal ordinance covering all Indians on the ground that the tribal constitution embraced only members. The Solicitor suggested two alternative remedies, amendment of the tribal constitution and delegation of federal authority from the Secretary. 1 Op. Sol. 736 (Mar. 17, 1937). One of these options would reflect a belief that tribes possess
These opinions provide the most specific historical evidence on the question before us and, we think, support our conclusion. Taken together with the general history preceding the creation of modern tribal courts, they indicate that the tribal courts embody only the powers of internal self-governance we have described. We are not persuaded that external criminal jurisdiction is an accepted part of the courts' function.
Whatever might be said of the historical record, we must view it in light of petitioner's status as a citizen of the United States. Many Indians became citizens during the era of allotment and tribal termination around the turn of the century, and all were made citizens in 1924. See Cohen 142-143 (tracing history of Indian citizenship). That Indians are citizens does not alter the Federal Government's broad authority to legislate with respect to enrolled Indians as a class, whether to impose burdens or benefits. See United States v. Antelope, 430 U.S. 641 (1977); Morton v. Mancari, 417 U.S. 535 (1974). In the absence of such legislation, however, Indians like other citizens are embraced within our Nation's "great solicitude that its citizens be protected . . . from unwarranted intrusions on their personal liberty." Oliphant, 435 U. S., at 210.
The special nature of the tribunals at issue makes a focus on consent and the protections of citizenship most appropriate. While modern tribal courts include many familiar features of the judicial process, they are influenced by the unique customs, languages, and usages of the tribes they serve. Tribal courts are often "subordinate to the political branches of tribal governments," and their legal methods may depend on "unspoken practices and norms." Cohen 334-335. It is significant that the Bill of Rights does not apply to Indian tribal governments. Talton v. Mayes, 163 U.S. 376 (1896). The Indian Civil Rights Act of 1968 provides some statutory guarantees of fair procedure, but these guarantees are not equivalent to their constitutional counterparts. There is, for example, no right under the Act to appointed counsel for those unable to afford a lawyer. See 25 U. S. C. § 1302(6).
Our cases suggest constitutional limitations even on the ability of Congress to subject American citizens to criminal proceedings before a tribunal that does not provide constitutional protections as a matter of right. Cf. Reid v. Covert,
Tribal authority over members, who are also citizens, is not subject to these objections. Retained criminal jurisdiction over members is accepted by our precedents and justified by the voluntary character of tribal membership and the concomitant right of participation in a tribal government, the authority of which rests on consent. This principle finds support in our cases decided under provisions that predate the present federal jurisdictional statutes. We held in United States v. Rogers, 4 How. 567 (1846), that a non-Indian could not, through his adoption into the Cherokee Tribe, bring himself within the federal definition of "Indian" for purposes of an exemption to a federal jurisdictional provision. But we recognized that a non-Indian could, by adoption, "become entitled to certain privileges in the tribe, and make himself amenable to their laws and usages." Id., at 573; see Nofire v. United States, 164 U.S. 657 (1897).
With respect to such internal laws and usages, the tribes are left with broad freedom not enjoyed by any other governmental authority in this country. See, e. g., Santa Clara Pueblo v. Martinez, 436 U. S., at 56, and n. 7 (noting that Bill of Rights is inapplicable to tribes, and holding that the Indian Civil Rights Act of 1968 does not give rise to a federal cause of action against the tribe for violations of its provisions). This is all the more reason to reject an extension of tribal authority over those who have not given the consent of the governed that provides a fundamental basis for power within our constitutional system. See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 172-173 (1982) (STEVENS, J., dissenting).
The Court of Appeals sought to address some of these concerns by adopting a "contacts" test to determine which nonmember Indians might be subject to tribal jurisdiction. But the rationale of the test would apply to non-Indians on the reservations as readily as to Indian nonmembers. Many non-Indians reside on reservations, and have close ties to tribes through marriage or long employment. Indeed, the population of non-Indians on reservations generally is greater than the population of all Indians, both members and nonmembers, and non-Indians make up some 35% of the Salt River Reservation population. See U. S. Dept of Commerce, Bureau of Census, Supplementary Report, American Indian Areas and Alaska Native Villages: 1980 Census of Population 16-19. The contacts approach is little more than a variation of the argument that any person who enters an Indian community should be deemed to have given implied consent to tribal criminal jurisdiction over him. We have rejected this approach for non-Indians. It is a logical consequence of that
Respondents and amici contend that without tribal jurisdiction over minor offenses committed by nonmember Indians, no authority will have jurisdiction over such offenders. They assert that unless we affirm jurisdiction in this case, the tribes will lack important power to preserve order on the reservation, and nonmember Indians will be able to violate the law with impunity.
For felonies such as the murder alleged in this case at the outset, federal jurisdiction is in place under the Indian Major Crimes Act, 18 U. S. C. § 1153. The tribes also possess their traditional and undisputed power to exclude persons whom they deem to be undesirable from tribal lands. See Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U. S., at 422. New Mexico v. Mescalero
Respondents' major objection to this last point is that, in the circumstances presented here, there may not be any lawful authority to punish the nonmember Indian. State authorities may lack the power, resources, or inclination to deal with reservation crime. Arizona, for example, specifically disclaims jurisdiction over Indian country crimes. Ariz. Const., Art. 20, ¶ 4. And federal authority over minor crime, otherwise provided by the Indian Country Crimes Act, 18 U. S. C. § 1152, may be lacking altogether in the case of crime committed by a nonmember Indian against another Indian, since § 1152 states that general federal jurisdiction over Indian country crime "shall not extend to offenses committed by one Indian against the person or property of another Indian."
Our decision today does not imply endorsement of the theory of a jurisdictional void presented by respondents and the court below. States may, with the consent of the tribes, assist in maintaining order on the reservation by punishing minor crime. Congress has provided a mechanism by which the States now without jurisdiction in Indian country may assume criminal jurisdiction through Pub. L. 280, see n. 1, supra. Our decision here also does not address the ability of neighboring tribal governments that share law enforcement concerns to enter into reciprocal agreements giving each jurisdiction over the other's members. As to federal jurisdiction under § 1152, both academic commentators and the dissenting judge below have suggested that the statute could be construed to cover the conduct here. See 851 F. 2d, at 1150-1151
If the present jurisdictional scheme proves insufficient to meet the practical needs of reservation law enforcement, then the proper body to address the problem is Congress, which has the ultimate authority over Indian affairs. We cannot, however, accept these arguments of policy as a basis for finding tribal jurisdiction that is inconsistent with precedent, history, and the equal treatment of Native American citizens. The judgment of the Court of Appeals is hereby
JUSTICE BRENNAN with whom JUSTICE MARSHALL joins, dissenting.
The Court today holds that an Indian tribal court has no power to exercise criminal jurisdiction over a defendant who is an Indian but not a tribal member. The Court concedes that Indian tribes never expressly relinquished such power. Instead, the Court maintains that tribes implicitly surrendered the power to enforce their criminal laws against nonmember Indians when the tribes became dependent on the Federal Government. Because I do not share such a parsimonious view of the sovereignty retained by Indian tribes, I respectfully dissent.
The powers of Indian tribes are " `inherent powers of a limited sovereignty which has never been extinguished.' " United States v. Wheeler, 435 U.S. 313, 322 (1978) (quoting F. Cohen, Handbook of Federal Indian Law 122 (1945) (emphasis in original)). When the tribes were incorporated into the territory of the United States and accepted the protection of the Federal Government, they necessarily lost some of the sovereign powers they had previously exercised. In Wheeler, we explained:
By becoming "domestic dependent nations," Indian tribes were divested of any power to determine their external relations. See id., at 326. Tribes, therefore, have no inherent power to enter into direct diplomatic or commercial relations with foreign nations. See Worcester v. Georgia, 6 Pet. 515, 559-560 (1832); Cherokee Nation v. Georgia, 5 Pet. 1, 17-18 (1831). In addition, Indian tribes may not alienate freely the land they occupy to non-Indians. See Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667-668 (1974); Johnson v. McIntosh, 8 Wheat. 543, 604 (1823). A tribe is implicitly divested of powers to have external relations because they are necessarily inconsistent with the overriding interest of the greater sovereign. See Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408, 451 (1989) (BLACKMUN, J., dissenting).
By contrast, we have recognized that tribes did not "surrender [their] independence — [the] right to self-government, by associating with a stronger [power], and taking its protection." Worcester, supra, at 560-561. Tribes have retained "the powers of self-government, including the power to prescribe and enforce internal criminal laws." Wheeler, supra, at 326. I agree with the Court that "[a] basic attribute of full territorial sovereignty is the power to enforce laws against all who come within the sovereign's territory, whether citizens or aliens." Ante, at 685. I disagree with the Court that Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978), "recognized that the tribes can no longer be described
In Oliphant, the Court did not point to any statutes or treaties expressly withdrawing tribal power to exercise criminal jurisdiction over nonmembers, but instead held that the tribe was implicitly divested of such power. The Court today appears to read Oliphant as holding that the exercise of criminal jurisdiction over anyone but members of the tribe is inconsistent with the tribe's dependent status. See ante, at 686.
A consideration of the relevant congressional enactments reveals that the opposite conclusion is appropriate with respect to nonmember Indians. In 1790, when Congress first addressed the rules governing crimes in Indian country, it made crimes committed by citizens or inhabitants of the United States against Indians punishable according to the laws of the State in which the offense occurred and directed the state courts to take jurisdiction of such offenses. See The Trade and Intercourse Act of 1790, 1 Stat. 138, ch. 33. In 1817, Congress withdrew that jurisdiction from the States and provided for federal jurisdiction (and the application of federal enclaves law) over crimes committed within Indian country. Congress made an explicit exception for crimes committed by an Indian against another Indian, however: "[N]othing in this act shall be so construed . . . to extend to any offense committed by one Indian against another, within any Indian boundary." 3 Stat. 383, ch. 92, codified, as amended, at 18 U. S. C. § 1152. In 1854, Congress again amended the statute to proscribe prosecution in federal court of an Indian who had already been tried in tribal court. 10 Stat. 270, ch. 30. Finally, in 1885, Congress made a limited but significant departure from its consistent practice of leaving to Indian tribes the task of punishing crimes committed by Indians against Indians. In response to this Court's decision in Ex parte Crow Dog, 109 U.S. 556, 571 (1883), which held that there was no federal jurisdiction over an Indian who murdered another member of his tribe, Congress passed the Indian Major Crimes Act, 23 Stat. 385, ch. 341, codified, as amended, at 18 U. S. C. § 1153, under which certain enumerated crimes, including murder, manslaughter, and arson, fall within federal jurisdiction when involving two Indians.
In Oliphant, the Court relied on this statutory background to conclude that the exercise of tribal jurisdiction over non-Indians
The Court acknowledges that these enactments support the inference that tribes retained power over members but concludes that no such inference can be drawn about tribal power over nonmembers. The Court finds irrelevant the fact that we have long held that the term "Indian" in these statutes does not differentiate between members and nonmembers of a tribe. See United States v. Kagama, 118 U.S. 375, 383 (1886); see also United States v. Rogers, 4 How. 567, 573 (1846) (the exception "does not speak of members of a tribe, but of the race generally, — of the family of Indians"). Rather, the Court concludes that the federal definition of "Indian" is relevant only to federal jurisdiction and is "not dispositive of a question of tribal power." Ante, at 690. But this conclusion is at odds with the analysis in Oliphant in which the congressional enactments served as evidence of a "commonly shared presumption" that tribes had
By refusing to draw this inference from repeated congressional actions, the Court today creates a jurisdictional void in which neither federal nor tribal jurisdiction exists over nonmember Indians who commit minor crimes against another
The Court also concludes that because Indians are now citizens of the United States, the exercise of criminal jurisdiction over a nonmember of the tribe is inconsistent with the tribe's dependent status. Stated differently, the Court concludes that regardless of whether tribes were assumed to retain power over nonmembers as a historical matter, the tribes were implicitly divested of this power in 1924 when Indians became full citizens. See ante, at 692 ("Whatever might be said of the historical record, we must view it in light of petitioner's status as a citizen of the United States"). The Court reasons that since we held in Oliphant that the exercise of criminal jurisdiction over non-Indians conflicted with the Federal Government's " `great solicitude that its citizens be protected . . . from unwarranted intrusions on their personal liberty,' " ante at 692 (quoting Oliphant, 435 U. S., at 210), the exercise of criminal jurisdiction over nonmember Indians is also inconsistent with this overriding national interest.
There are several problems with this argument. First, in Oliphant the Court held merely that "[b]y submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress." Oliphant, supra, at 210 (emphasis added). The touchstone in determining the extent to which citizens can be
Moreover, this argument proves too much. If tribes were implicitly divested of their power to enforce criminal laws over nonmember Indians once those Indians became citizens, the tribes were also implicitly divested of their power to enforce criminal laws over their own members who are now citizens as well. The Court contends, however, that tribal members are subject to tribal jurisdiction because of "the voluntary character of tribal membership and the concomitant right of participation in a tribal government." Ante, at 694. But we have not required consent to tribal jurisdiction or participation in tribal government as a prerequisite to the exercise of civil jurisdiction by a tribe, see Williams v. Lee, 358 U.S. 217, 223 (1959), and the Court does not explain why such a prerequisite is uniquely salient in the criminal context. Nor have we ever held that participation in the political process is a prerequisite to the exercise of criminal jurisdiction by a sovereign. If such were the case, a State could not prosecute nonresidents, and this country could not prosecute aliens who violate our laws. See, e. g., United States v. Verdugo-Urquidez, 494 U.S. 259 (1990); id., at 279-281 (BRENNAN, J., dissenting). The commission of a crime on the reservation is all the "consent" that is necessary to allow the tribe to exercise criminal jurisdiction over the nonmember Indian.
Finally, the Court's "consent" theory is inconsistent with the underlying premise of Indian law, namely, that Congress
More understandable is the Court's concern that nonmembers may suffer discrimination in tribal courts because such courts are "influenced by the unique customs, languages, and usages of the tribes they serve." Ante, at 693. But Congress addressed this problem when it passed the ICRA, 25 U. S. C. § 1301 et seq., which extended most of the Bill of Rights to any person tried by a tribal court.
This country has pursued contradictory policies with respect to the Indians. Since the passage of the Indian Reorganization Act of 1934, 48 Stat. 984, ch. 576, § 1, codified at 25 U. S. C. § 461, however, Congress has followed a policy of promoting the independence and self-government of the various
Briefs of amici curiae were filed for the Rosebud Sioux Tribe et al. by Jerilyn DeCoteau and Robert T. Anderson; and for the Salt River Project Agricultural Improvement and Power District by John B. Weldon, Jr., and Stephen E. Crofton.
"(a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnaping, maiming, a felony under chapter 109A, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
"(b) Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense."
It remains an open question whether jurisdiction under § 1153 over crimes committed by Indian tribe members is exclusive of tribal jurisdiction. See United States v. Wheeler, 435 U.S. 313, 325, n. 22 (1978).
Another federal statute, the Indian Country Crimes Act, 18 U. S. C. § 1152, applies the general laws of the United States to crimes committed in Indian country:
"Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country."
The general law of the United States may assimilate state law in the absence of an applicable federal statute. 18 U. S. C. § 13. Section 1152 also contains the following exemptions:
"This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively."
For Indian country crimes involving only non-Indians, longstanding precedents of this Court hold that state courts have exclusive jurisdiction despite the terms of § 1152. See New York ex rel. Ray v. Martin, 326 U.S. 496 (1946); United States v. McBratney, 104 U.S. 621 (1882). Certain States may also assume jurisdiction over Indian country crime with the consent of the affected tribe pursuant to Pub. L. 280, Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (codified, as amended, at 18 U. S. C. § 1162, 28 U. S. C. § 1360) and the Indian Civil Rights Act of 1968, Pub. L. 90-284, Tit. IV, 82 Stat. 78 (codified at 25 U. S. C. §§ 1321-1328).
The final source of criminal jurisdiction in Indian country is the retained sovereignty of the tribes themselves. It is undisputed that the tribes retain jurisdiction over their members, subject to the question of exclusive jurisdiction under § 1153 mentioned above. See United States v. Wheeler, supra. The extent of tribal jurisdiction over nonmembers is at issue here. For a scholarly discussion of Indian country jurisdiction, see Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 505 (1976).
In transmuting this dictum into law, the Court relies on language from Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 161 (1980), stating that nonmembers " `stand on the same footing as non-Indians resident on the reservation.' " Ante, at 687 (quoting Colville, supra, at 161). But this reliance is misplaced because the language is found in the Court's discussion of the State's power over nonmember Indians rather than a discussion of the tribe's power. We have not allowed States to regulate activity on a reservation that interferes with principles of tribal self-government. See Colville, 447 U. S., at 161. Thus in Colville, we held that the State could tax nonmembers who purchased cigarettes on a reservation; such taxation would not interfere with tribal self-government because nonmembers are not constituents of the tribe. See ibid. Yet at the same time, we held that the tribe could also tax the nonmember purchasers because the power to tax was not implicitly divested as inconsistent with the overriding interests of the Federal Government. See id., at 153.
Similarly, the Court's citation to Montana v. United States, 450 U.S. 544 (1981), for the " `general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe,' " ante, at 687 (quoting Montana, supra, at 565), is also inapposite. In Montana, the Court concluded that the Tribe could regulate hunting and fishing by nonmembers on lands held by the Tribe, but not on lands within the reservation no longer held by the Tribe. See 450 U. S., at 564. The Court recognized, however, that tribes have, as a matter of inherent sovereignty, power over nonmembers when they engage in consensual relationships with tribal members and when their conduct "threatens or has some direct effect on the political integrity, the economic stability, or the health or welfare of the tribe." Id., at 566 (citations omitted). The Court today provides no explanation for why the exercise of criminal jurisdiction over a nonmember who commits a crime on property held by the tribe involves different concerns, see ante, at 688, such that tribes were implicitly divested of that power.
To the contrary, the historical record reveals that Congress and the Executive had indeed considered the question of intertribal crime. In 1834, Congress proposed the Western Territories bill that would have relocated all Indians to the western part of the United States. One provision would have created a General Council to regulate commerce among the various tribes, preserve peace, and punish intertribal crimes. See H. R. Rep. No. 474, 23d Cong., 1st Sess., 36 (1834). Although the bill never passed, it clearly shows that Congress assumed that the Indians would police intertribal disputes. See Oliphant, 435 U. S., at 202 (relying on different provision of bill). In addition, it is clear that the Executive Branch considered the question of intertribal disputes. In 1883, the Solicitor of the Department of the Interior issued an opinion, adopted by the Attorney General, dealing with the question of federal jurisdiction over an Indian accused of murdering a member of another Tribe. Presaging this Court's holding in Ex parte Crow Dog, 109 U.S. 556 (1883), by a few months, the Attorney General concluded that there was no federal jurisdiction over the crime because it fell within the Indian-against-Indian exception. 17 Op. Atty. Gen. 566 (1883). The opinion concluded: "If no demand for Foster's surrender shall be made by one or other of the tribes concerned, founded fairly upon a violation of some law of one or other of them having jurisdiction of the offense in question . . . it seems that nothing remains except to discharge him." Id., at 570. Given the proximity of this incident to the Crow Dog incident, it is implausible to conclude that Congress did not consider the situation of intertribal crimes when passing the Indian Major Crimes Act.
The Court erroneously equates the jurisdictional void that resulted from the holding in Oliphant with the void created by the opinion today. Since federal courts have jurisdiction over crimes involving non-Indians, any "void" resulting from the holding in Oliphant would have been caused by the discretionary decision of the Federal Government not to exercise its already-established jurisdiction. Such a "practical" void, ante, at 696, is a far cry from the "legal" void, ibid., created today, in which no sovereign has the power to prosecute an entire class of crimes.
"(2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizure . . . ;
"(3) subject any person for the same offense to be twice put in jeopardy;
"(4) compel any person in any criminal case to be a witness against himself;
"(6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense;
"(7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments . . . ;
"(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;
"(9) pass any bill of attainder or ex post facto law; or
"(10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons." 25 U. S. C. § 1302.