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.

* 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 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.

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).

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.

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 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 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 authority to try non-Indians to the tribe's retained inherent powers of government over the reservation. 435 U.S. at 196, 98 S.Ct. at 1014. The Court rejected this argument. First, it identified a historical shared presumption on the part of Congress, the executive branch, and the lower federal courts that tribal courts do not have the power to try non-Indians. Second, it examined the particular treaty signed by the Suquamish for indications that the tribe had ceded criminal jurisdiction to the federal government. Finally, it determined in the light of precedent that the exercise of criminal jurisdiction would be inconsistent with the tribe's dependent status.

Applying the Oliphant analysis to Duro's case, we note first that the historical evidence is equivocal on the question of whether tribal court jurisdiction extends to nonmember Indians. There are indications that the executive branch and courts assumed that tribal courts may try crimes committed by any Indian, whether or not he is a tribe member. Collins, Implied Limitations on the Jurisdiction of Indian Tribes, 54 Wash.L.Rev. 479, 479 n. 5 (1979) (citing 25 C.F.R. Sec. 11.2(c) (1978); United States v. Burland, 441 F.2d 1199, 1200 n. 1 (9th Cir.), cert. denied, 404 U.S. 842, 92 S. Ct. 137, 30 L. Ed. 2d 77 (1971); Arizona ex rel. Merrill v. Turtle, 413 F.2d 683, 686 (9th Cir.1969), cert. denied, 396 U.S. 1003, 90 S. Ct. 551, 24 L. Ed. 2d 494 (1970)). One commentator has implied that non-Indians and nonmembers have the same status. The implication was derived from an analysis of statutes that allow states to assume criminal and civil jurisdiction over Indian country with the consent of the tribe occupying the particular Indian country. 25 U.S.C. Secs. 1321, 1322 and 1326. We do not agree with that implication.4

Perplexed by these ambiguities in the historical record, we turn to the Court's third argument in Oliphant. "By 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." 435 U.S. at 210, 98 S.Ct. at 1021. This overriding sovereignty argument was the core of the Court's opinion.5 Id. at 206, 208, 98 S. Ct. at 1019, 1020 (explaining the lesser importance of the other arguments). At first blush, the theory of overriding sovereignty appears to limit the jurisdiction of tribal courts only with respect to non-Indians, to whom the tribes originally submitted. Tribal courts would retain jurisdiction over nonmember Indians. However, all Indians are now United States citizens. 8 U.S.C. Sec. 1401(a)(2). As citizens, Indians as well as non-Indians can claim to be exempt from the criminal jurisdiction of tribes, which are sovereign entities subordinate to the United States. This suggests an equal protection claim which we address later. It is evident, however, that the reasoning of Oliphant, like its language, does not dispose of this case.

Rather, what is more dispositive of this case is the federal criminal statutory scheme6 and its treatment of crimes committed by Indians. 18 U.S.C. Sec. 1151, et seq.

That statutory scheme subjects individuals to federal prosecution "by virtue of their status as Indians." United States v. Antelope, 430 U.S. 641, 642, 97 S. Ct. 1395, 1396, 51 L. Ed. 2d 701 (1977). For purposes of the federal criminal statutes the important inquiry is whether a particular defendant is a member of a tribe that has a special relationship with the federal government, not whether the defendant happens to have a relationship with the tribe governing the reservation where the offense occurred. Accordingly, in United States v. Heath, 509 F.2d 16 (9th Cir.1974) we held that a Klamath Indian whose tribe had been federally "terminated" could not be federally prosecuted for a violation of 18 U.S.C. Secs. 1111 and 1153 for killing an enrolled member of the Warm Springs Indian Tribe on the Warm Springs Reservation. The reason was the absence of a federal relationship between the Klamaths and the United States as a result of the termination of federal supervision over the Klamath Tribe by the Klamath Termination Act; 25 U.S.C. Sec. 564 et seq. Id. at 19. Under 18 U.S.C. Sec. 1153 jurisdiction is based upon a crime committed by one Indian against another Indian within the Indian country. It was not suggested that federal jurisdiction was lacking because the Klamath was on the reservation of the Warm Springs Tribe, where she enjoyed no tribal relationship.

Granted, the discussion so far has been concerned with federal jurisdiction and not tribal. However, it cannot be ignored that the two are interwoven. Thus in Arizona ex rel Merrill v. Turtle, supra, we held that Navajo tribal sovereignty precluded Arizona from arresting a Cheyenne Indian on the Navajo Reservation for the purpose of extraditing him to Oklahoma. We recognized, by analyzing the terms of the Treaty of 1868 between the Navajos and the United States that a tribe has the right to exercise power over the Indian residents of its reservation, without distinction as to whether the Indian was a member of the tribe or not. Id. at 686.

The structure of criminal jurisdiction in Indian country, as far as it relevant here, is easily discerned. Tribal courts generally handle petty crimes by Indians against Indians and victimless crimes by Indians. However, certain "major" crimes by Indians are dealt with in federal court pursuant to the Major Crimes Act, 18 U.S.C. Sec. 1153. That statute punishes "Indians" who commit crimes in Indian country. That usually means that the crime is committed on some tribe's reservation "and the fair inference is that the offending Indian shall belong to that or some other tribe ... [the statute's] effect is confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation." United States v. Kagama, 118 U.S. 375, 383, 6 S. Ct. 1109, 1113, 30 L. Ed. 228 (1886) (emphasis added). The statute has never been restricted in its application to Indians who are members of the "host" tribe.

Crimes by Indians against non-Indians and crimes by non-Indians against Indians are punishable under 18 U.S.C. Sec. 1152. That statute makes applicable in Indian country those criminal laws applicable in areas of exclusive federal jurisdiction with several exceptions.7

As 18 U.S.C. Sec. 1152 has been applied it has also been assumed that references to "Indian" meant any Indian not just Indians who were members of the host tribe. In United States v. Burland, 441 F.2d 1199 (9th Cir.), cert. denied, 404 U.S. 842, 92 S. Ct. 137, 30 L. Ed. 2d 77 (1971) we applied the statute to a member of the Confederated Salish and Kootenai Tribes who committed a crime on the Flathead Reservation. We noted, citing Kagama, supra, that Burland did not argue "that the statute was inapplicable to him because he was a member of a tribe other than the local tribe and was visiting from another reservation." Id. at 1200, n. 1.

Furthermore, in discussing the Major Crimes Act, we held in United States v. Johnson, 637 F.2d 1224 (9th Cir.1980) that except for the crimes specifically enumerated in the Act, "the general rule is that tribal courts have retained exclusive jurisdiction over all crimes committed by Indians against other Indians in Indian country." Id. at 1231. Again we declined to make a distinction between member and nonmember Indians.

The cases discussing the federal criminal statutory scheme clearly indicate that if Congress had intended to divest tribal courts of criminal jurisdiction over nonmember Indians they would have done so. Absent such divestment it is reasonable to conclude that tribal courts retain jurisdiction over crimes committed by Indians against other Indians without regard to tribal membership.

The district court ruled that the tribe's exercise of criminal jurisdiction over Duro denied him the equal protection of its laws in violation of the Indian Civil Rights Act, 25 U.S.C. Sec. 1302.8 The court said that the distinction between nonmember Indians and non-Indians "is based solely upon race." It recognized that racial classifications ordinarily must withstand strict scrutiny. Finally, it concluded that "[t]he discriminatory enforcement of tribal criminal jurisdiction in this case cannot be upheld under either the rational basis or strict scrutiny standards." We consider in turn each step of the district court's reasoning.

The Supreme Court has made clear that "federal legislation with respect to Indian tribes, although relating to Indians as such, is not based upon impermissible racial classifications."9 United States v. Antelope, 430 U.S. 641, 645, 97 S. Ct. 1395, 1398, 51 L. Ed. 2d 701 (1977). The district court accepted this proposition with respect to legislation concerning federal recognized Indian tribes, which are political rather than racial groups. See Morton v. Mancari, 417 U.S. 535, 553, n. 24, 94 S. Ct. 2474, 2484, n. 24, 41 L. Ed. 2d 290 (1974). Therefore the district court recognized that tribal courts may exercise criminal jurisdiction over member Indians even though non-Indians are exempt. However, it viewed the extension of tribal court criminal jurisdiction to nonmember Indians as based on race alone.

The district court erroneously assumed that tribal courts extend their criminal jurisdiction to Indians on the basis of race. Who is an Indian turns on numerous facts of which race is only one, albeit an important one. The criminal jurisdiction of federal courts also turns, in part, on who is an Indian. See, e.g., 18 U.S.C. Secs. 1152, 1153. Federal courts identify Indians by reference to an individual's degree of Indian blood and his tribal or governmental recognition as an Indian. United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir.), cert. denied, 444 U.S. 859, 100 S. Ct. 123, 62 L. Ed. 2d 80 (1979). Members of terminated tribes do not qualify as Indians, regardless of their race. United States v. Heath, 509 F.2d 16, 19 (9th Cir.1974). Enrolled members of tribes qualify as Indians if there is some other evidence of affiliation, such as residence on a reservation and association with other enrolled members. United States v. Indian Boy X, 565 F.2d 585, 594 (9th Cir.1977), cert. denied, 439 U.S. 841, 99 S. Ct. 131, 58 L. Ed. 2d 139 (1978). A person of mixed blood who is enrolled in a recognized tribe or otherwise affiliated with it may be treated as an Indian. Ex parte Pero, 99 F.2d 28, 31 (7th Cir.1938), cert. denied, 306 U.S. 643, 59 S. Ct. 581, 83 L. Ed. 1043 (1939); R. Flowers, Criminal Jurisdiction Allocation in Indian Country 6 (1983). For the purpose of federal jurisdiction, Indian status is "based on a totality of circumstances, including genealogy, group identification, and lifestyle, in which no one factor is dispositive." Clinton, Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz.L.Rev. 503, 518 (1976). Tribal courts may define their criminal jurisdiction according to a similarly complex notion of who is an Indian.

In this case, Duro is enrolled in a recognized tribe, although not in the Community. He was closely associated with the Community through his girlfriend, a Community member, his residence with her family on the Reservation, and his employment with the PiCopa Construction Company. These contacts justify the tribal court's conclusion that Duro is an Indian subject to its criminal jurisdiction. We stress that his is not purely a racial determination. Indeed, the record does not describe Duro's ancestry, so we do not know his degree of Indian blood.

The Community wishes to extend the tribal court's criminal jurisdiction to nonmember Indians in order to better enforce the law on the Reservation. Federal prosecution of crimes on reservations has long been inadequate. Jurisdiction on Indian Reservations, Hearing on S. 3092 Before the Senate Select Comm. on Indian Affairs, 98 Cong., 2d Sess. 21, 27-28 (1985) (statements of Caleb Shields, Councilman, Assiniboine & Sioux Tribes, Fort Peck Reservation, Montana, and James C. Nelson, County Attorney, Glacier County, Montana); American Indian Policy Review Comm'n, Report on Federal, State, and Tribal Jurisdiction 37-39 (1976). Law enforcement by state officials is also undependable, American Indian Policy Review Comm'n, supra, at 39-40, in part because of jurisdictional uncertainties that will be discussed in the next subsection. Furthermore, treating nonmember Indians resident on the reservation differently from member residents undermines the tribal community. See Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, 33 Stan.L.Rev. 979, 1015-16 (1981) (criticizing treating members and nonmembers differently with regard to state taxes because it fragments the tribal community).

The district court recognized that tribal court jurisdiction over nonmember Indians would strengthen tribal authority over the reservation. But it thought this consideration was outweighed by the injustice of treating nonmember Indians differently from non-Indians. Neither nonmember Indians nor non-Indians may participate in tribal government. However, as explained above in the discussion of Oliphant, the Supreme Court did not exempt non-Indians from the criminal jurisdiction of tribal courts on the ground that they are excluded from tribal government. Had that been the case, non-Indians presumably would be exempt from the civil jurisdiction of tribal courts. That is not the case, however. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 107 S. Ct. 971, 976, 94 L. Ed. 2d 10 (1987); Williams v. Lee, 358 U.S. 217, 223, 79 S. Ct. 269, 272, 3 L. Ed. 2d 251 (1959).

We conclude that extending tribal court criminal jurisdiction to nonmember Indians who have significant contacts with a reservation does not amount to a racial classification. We further find that this policy is reasonably related to the legitimate goal of improving law enforcement on reservations. The district court's decision was in error.

Our conclusion is strengthened when we consider what would happen if we ruled that Duro is exempt from tribal court criminal jurisdiction. Duro argues that because neither he nor his supposed victim was a member of the Community, they must both be treated like non-Indians for the purpose of criminal jurisdiction. Thus only a state court could have jurisdiction over Duro.10 See D. Getches, D. Rosenfelt & C. Wilkinson, Cases and Materials on Federal Indian Law 388 (1979) (citing United States v. McBratney, 104 U.S. (14 Otto) 621, 26 L. Ed. 869 (1882)). The flaw in Duro's analysis is that state courts apparently do not exercise their criminal jurisdiction as Duro recommends. Notably, the record in this case shows no attempt to prosecute Duro in state court. At least one state court has held that it lacked jurisdiction over an Indian who allegedly committed a crime on a reservation, even though the Indian was not a member of the reservation tribe. State v. Allan, 100 Idaho 918, 921, 607 P.2d 426, 429 (1980). If no state court takes jurisdiction of Duro's case, there will be a jurisdiction void.

It is possible that state courts will henceforth extend their criminal jurisdiction to cases involving nonmember Indians such as Duro. But increasing state authority in Indian reservations has its own disadvantages. See Clinton, State Power over Indian Reservations: A Critical Comment on Burger Court Doctrine, 26 S.D.L.Rev. 434, 445-46 (1981) (criticizing the extension of state authority into Indian country as inconsistent with constitutional history and needlessly complex). We are fortunate to be able to avoid this dilemma.

We conclude that the tribal court had criminal jurisdiction over Duro. The district court erred in granting a writ of habeas corpus. Consequently it abused its discretion by issuing a writ of prohibition in aid thereof.

VACATED.

The majority has substantially revised its opinion since it first appeared at 821 F.2d 1358-64 (9th Cir.1987). It is, therefore, appropriate that my dissent be revised, particularly in light of the fact that the intervening deliberations have provided to me additional insights that have strengthened my resolve to dissent.

In my original dissent, I stated "Oliphant should govern this case." Id. at 1364. That remains true, but now I am more ready to concede that it need not. The underpinning of its holding was the history of the relationship between the United States and Indian tribes generally and the Suquamish Tribe in particular. Emphasis was placed upon the fact that the tribes seldom, if ever, exercised criminal jurisdiction over non-Indians prior to the middle of this century. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 196-97, 98 S. Ct. 1011, 1014-15, 55 L. Ed. 2d 209 (1978). The same undoubtedly cannot be said with respect to the exercise of criminal jurisdiction over Indians not members of the adjudicating tribe. Therefore, I concede that the ratio decidendi of Oliphant is not applicable to this case.

Nonetheless, Oliphant exists. Its holding that neither the existing residual tribal sovereignty nor a grant of power by Congress authorized the exercise of criminal jurisdiction by a tribe over a non-Indian leaves open the question whether either supports the exercise of such jurisdiction over a nonmember Indian. I believe neither does. My reasons, succinctly stated, are as follows:

(1) United States v. Wheeler, 435 U.S. 313, 98 S. Ct. 1079, 55 L. Ed. 2d 303 (1978), makes clear that retained tribal sovereignty exists to govern the behavior of tribal members. No necessity exists to expand its reach.

(2) No federal statute explicitly grants to tribal authorities the power to exercise criminal jurisdiction over nonmembers. 18 U.S.C. Sec. 1152 does not exclude such a grant but it does not require it. Nor does existing case law require it.

(3) To subject nonmember Indians to tribal jurisdiction discriminates against the nonmember both actually and potentially. This discrimination is not justifiable.

I now shall address each of these positions in greater depth.

To understand the scope of United States v. Wheeler, supra, it is helpful to point out that both Oliphant v. Suquamish Indian Tribe, supra, and Wheeler originated in this circuit and that each constituted a reversal of this circuit's prior decision. In Oliphant, this circuit extended criminal tribal jurisdiction to non-Indians, while in Wheeler it made any conviction by a tribal court of any crime over which it had jurisdiction a bar to prosecution by the United States of the greater offense of which the tribally prosecuted lesser included offense was a part. The circuit court in Wheeler undoubtedly was influenced by the expansion of tribal authority recognized by Oliphant. To reach its result in Wheeler, this court reasoned that the United States and the Navajo Tribe should not be treated as dual sovereigns for double jeopardy purposes.

It was this proposition against which much of the Supreme Court's opinion in Wheeler is directed. It must be remembered that the Court no doubt considered Wheeler and Oliphant contemporaneously because they were argued within two days and decided within sixteen days of one another. Having decided Oliphant by rejecting the expansion of the authority of tribal courts over crimes by non-Indians, it would not have been surprising to have found the Court in Wheeler using "non-Indians" as the limit of the reach of the "retained sovereignty" upon which it relied in Wheeler. It could have done so by referring to past tribal practices which many assert drew no distinctions between members and nonmembers insofar as punishment for crimes on the reservation were concerned.

It did not do so, however. Throughout the opinion the focus is upon the tribe's retained sovereignty with respect to its members. Two examples of this focus are as follows:

Moreover, the sovereign power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status. The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. Thus, Indian tribes can no longer freely alienate to non-Indians the land they occupy. Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667-668 [94 S. Ct. 772, 777-778]; Johnson v. M'Intosh, 8 Wheat. 543, 574 [5 L. Ed. 681]. They cannot enter into direct commercial or governmental relations with foreign nations. Worcester v. Georgia, 6 Pet. 515, 559 [8 L. Ed. 483]; Cherokee Nation v. Georgia, 5 Pet., at 17-18; Fletcher v. Peck, 6 Cranch 87, 147 [3 L. Ed. 162] (Johnson, J., concurring). And, as we have recently held, they cannot try nonmembers in tribal courts. Oliphant v. Suquamish Indian Tribe, ante, [435 U.S.] p. 191 [98 S.Ct. p. 1011].

435 U.S. at 326, 98 S. Ct. at 1087 (emphasis added).

In sum, the power to punish offenses against tribal law committed by Tribe members, which was part of the Navajos' primeval sovereignty, has never been taken away from them, either explicitly or implicitly, and is attributable in no way to any delegation to them of federal authority. It follows that when the Navajo Tribe exercises this power, it does so as part of its retained sovereignty and not as an arm of the Federal Government.

Id. at 328, 98 S.Ct. at 1088 (emphasis added) (footnotes omitted). Others appear in the margin.1

The lesson to be drawn appears to me to be clear. Retained tribal sovereignty exists with respect to members only. What powers over nonmembers, Indian or not, that exist have their source in federal law be it an act of Congress, a federal court decision, or an administrative decree of a federal agency. While the decision of the majority will clothe some tribes with authority to subject nonmember Indians to its criminal jurisdiction, it is clear that its source is not retained jurisdiction, but rather the court's mandate. The upshot is that the majority wishes to enhance slightly tribal powers while I do not.

DO FEDERAL STATUTES GRANT TO TRIBES POWER TO IMPOSE CRIMINAL

PUNISHMENT ON NONMEMBER INDIANS?

The majority devotes substantial space to arguing that federal statutes have given tribal courts the power to subject nonmember Indians to its criminal jurisdiction. See pp. 12-16 [Brunetti draft]. It asserts that certain cases have assumed that such jurisdiction exists and that "the structure of criminal jurisdiction in Indian country," p. 14[B.d.], also suggests that this is true.

I shall address each case cited by the majority. Only a portion of a sentence appearing in United States v. Antelope, 430 U.S. 641, 642, 97 S. Ct. 1395, 1396, 51 L. Ed. 2d 701 (1977), was quoted by the majority, apparently to make the point that federal criminal statutes focus on "Indians" without the qualifier "tribal member" or "non-tribal member." The full sentence is:

The question presented by our grant of certiorari is whether, under the circumstances of this case, federal criminal statutes violate the Due Process Clause of the Fifth Amendment by subjecting individuals to federal prosecution by virtue of their status as Indians.

The "circumstances of this case" were that members of the Coeur d'Alene tribe murdered a non-Indian in the Coeur d'Alene reservation and sought to be tried under Idaho law rather than federal law pursuant to the Major Crimes Act, 18 U.S.C. Sec. 1153. The Court rejected the defendants' constitutional argument. It was not necessary to address whether any distinction between members of the Coeur d'Alene tribe and nonmembers existed. To have said each time the word "Indians" was used, "including both members and nonmembers," would have been absurd. The case simply is not relevant to the issue before us.

The majority itself recognized the marginal significance of United States v. Heath, 509 F.2d 16 (9th Cir.1974), to the issue before us. I would go further and assert that it has no relevance whatsoever. The issues before the court in Heath were whether the United States could indict an Indian of a terminated tribe under the Major Crimes Act, 18 U.S.C. Sec. 1153,2 and, if not, whether the attempt to do so was prejudicial error when the crime charged was murder, as defined in 18 U.S.C. Sec. 1111, and committed in "Indian country" and, thus, subject to federal jurisdiction under the Federal Enclaves Act, 18 U.S.C. Sec. 1152.3 This court held that the defendant, as an Indian of a terminated tribe, must be treated as any other non-Indian citizen of the state. As a result, 18 U.S.C. Sec. 1153 could not provide a basis for federal jurisdiction. It applies, this court held, only when the "Indian who commits [certain crimes] against the person or property of another Indian or other person," Sec. 1153, is an Indian as to whom the United States has a "special responsibility." Heath, 509 F.2d at 19. A person, who happens to be an Indian and was once a member of a now terminated tribe, could have been indicted, as could have been any other person, under 18 U.S.C. Sec. 1152. The court concluded that under these circumstances the indictment under 18 U.S.C. Sec. 1153 was not prejudicial error.

The issue of tribal court jurisdiction over a nonmember Indian was irrelevant to the question that Heath raised. Had the Heath court believed that the tribal court had criminal jurisdiction over a nonmember it would have affected neither its reasoning nor its result. The crucial issue, as seen by Heath, was whether the United States had a "special responsibility" with regard to the defendant, not whether the defendant was a member of the victim's tribe. The majority says it did not occur to the Heath court to suggest "that federal jurisdiction is lacking because the Klamath [the defendant Indian] was on the reservation of the Warm Springs Tribe, where he enjoyed no tribal relationship." [B draft p. 3] Of course, it did not. It was irrelevant. To overlook an issue that could have been controlling is significant; to refrain from addressing one that is irrelevant only mercifully saves both the reader's eyes and time.

The majority's use of State of Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th Cir.1969), cert. denied, 396 U.S. 1003, 90 S. Ct. 551, 24 L. Ed. 2d 494 (1970), is a bit closer to the mark at which it is shooting. Unfortunately, a miss is a miss, however. This court, in holding that the Navajo Tribe need not accede to Arizona's effort to extradite a Cheyenne Indian resident on their reservation to the State of Oklahoma, emphasized the retained sovereignty of the Tribe. We pointed to the Treaty of 1868, the Supreme Court's decision in Williams v. Lee, 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959), the codification of the Navajo Tribe's extradition responsibilities in its Tribal Code, and the approval of that Code by the Commissioner of Indian Affairs. None of those sources of law required the Tribe to accede to Arizona's request. Indeed, the Tribal Code expressly precluded any such accession.

The case, therefore, is consistent with the existence of substantial retained sovereignty and for the purposes of the case treated members and nonmembers the same. This similarity of treatment was rooted in the 1868 Treaty that spoke of "bad men among the Indians," who committed wrongs against anyone "subject to the authority of the United States," a group that undoubtedly includes, from time to time, whites as well as nonmember Indians. But it goes no further. It simply does not address the jurisdiction of the Navajo Tribe to subject nonmembers to criminal prosecution. If one repeats "tribal sovereignty" over and over again, the hypnotic power of the phrase may lead one to conclude that such jurisdiction in a given situation exists. Reasoning, not self-hypnosis, is the way of the law, however.

Enough has been said to suggest that neither 18 U.S.C. Sec. 1152 nor 18 U.S.C. Sec. 1153 compel the conclusion which the majority reached. The latter, the Major Crimes Act, draws into federal court "any Indian" who commits certain crimes within "Indian country." Membership within the tribe occupying the country in which the crime occurs is irrelevant. It says nothing, I repeat, about the jurisdiction of a tribal court to prosecute criminally a nonmember who commits a crime over which the tribe has jurisdiction.

The Federal Enclaves Act, 18 U.S.C. Sec. 1152, also does not unequivocally support the majority. Its principal purpose is to extend to "Indian country" the general laws of the United States. The reach of those laws within "Indian country" clearly is unaffected by whether the offender is an Indian or a non-Indian. See Mull v. United States, 402 F.2d 571, 573 (9th Cir.1968), cert. denied, 393 U.S. 1107, 89 S. Ct. 917, 21 L. Ed. 2d 804 (1969). On its face, 18 U.S.C. Sec. 1152 also would appear not to draw a distinction between a victim who is Indian and one who is not. However, it has been long established that the statute does not embrace an offense by a non-Indian against a non-Indian even when committed in Indian country. United States v. McBratney, 104 U.S. (14 Otto) 869, 26 L. Ed. 869 (1882); see New York ex rel. Ray v. Martin, 326 U.S. 496, 500, 66 S. Ct. 307, 90 L. Ed. 261 (1946); Mull v. United States, 402 F.2d at 573.

An offense by an Indian against a non-Indian, on the other hand, is within the statute. See United States v. Burland, 441 F.2d 1199, 1203 (9th Cir.), cert. denied, 404 U.S. 842, 92 S. Ct. 137, 30 L. Ed. 2d 77 (1971). And it is true, as Burland holds, that the Indian offender need not have committed his crime within the reservation limits of the tribe of which he is a member. Cf. United States v. Kagama, 118 U.S. 375, 382, 6 S. Ct. 1109, 1113, 30 L. Ed. 228, 231 (1885). All that is necessary is that it have been committed in "Indian country."

The position of the majority emerges in its most forceful form when the focus is fixed upon the exceptions to 18 U.S.C. Sec. 1152. These are (1) "offenses committed by one Indian against the person or property of another Indian," (2) "any Indian committing any offense in the Indian country who has been punished by the local law of the tribe," and (3) any offense where by treaty exclusive jurisdiction "is or may be secured to the Indian tribes respectively." Only the first would be affected by taking Wheeler at its word and rejecting the position of the majority. In essence, the majority argues that because there is no explicit provision for relieving the nonmember Indian from tribal jurisdiction in the first exception, he must be subject to the tribe's criminal jurisdiction. It buttresses this by pointing out, as already indicated, that 18 U.S.C. Sec. 1152 is applicable generally without regard to whether the offender was a member of the Tribe on whose reservation the offense was committed. Thus, tribal membership, it argues, also should be irrelevant in applying the exception.

The conclusion does not follow. To disregard membership in construing the broad reach of 18 U.S.C. Sec. 1152 protects Indians from possible discrimination by state courts; to disregard it construing the exception to its broad reach serves only to enhance the possibility of discrimination by the tribal court against a nonmember Indian. Only an incurable romantic would argue that only discrimination by state courts can exist. Finally, there is no more reason to treat the literal language of the statute as all encompassing than there was in the case of the non-Indian offense against the non-Indian. See McBratney, 104 U.S. 869; New York ex rel. Ray v. Martin, 326 U.S. 496, 66 S. Ct. 307.

I acknowledge that the exclusion of nonmember Indians from the jurisdiction of tribal courts will impose somewhat greater responsibilities on certain United States Attorneys.4 Nonmember offenses not directed at another Indian, and not described in the Major Crimes Act, 11 U.S.C. Sec. 1153, must be prosecuted by these officials. This category embraces such things as drunk and disorderly conduct.

The majority also suggests that state prosecutors and state courts may become involved in law enforcement. This concern appears to be premised on the assumption that an offense by a nonmember Indian against another Indian, which is not a major crime, would not be covered by 18 U.S.C. Sec. 1152 were my view to prevail. Thus, the majority suggests state law enforcement would be required to fill the gap.

I suggest the majority has misread 18 U.S.C. Sec. 1152. To exclude nonmember Indians from the Indian-against-Indian exception merely places the nonmember in the same position as a non-Indian, or an Indian for whom, as in Heath, the federal government has no "special responsibility." Both are subject to "sole and exclusive jurisdiction of the United States." There is no reason why a nonmember should be treated differently. To the extent the offense each commits is not proscribed by federal law, the Assimilative Crimes Act, 18 U.S.C. Sec. 13, will import the applicable state law to be applied by federal authorities and courts.

The fear of the majority can be put this way. As they see it, an offense which is not a major one by an Indian against an Indian is excluded from federal jurisdiction when tribal jurisdiction is lacking because the offender is a nonmember. I suggest that under those circumstances the offense "escapes" the first exception to the general rule of 18 U.S.C. Sec. 1152 but does not "escape" the broad reach of 18 U.S.C. Sec. 1152. That is, the offense remains an offense by an Indian within Indian country and thus subject to the general laws of the United States, but, for the reason stated here, should not be considered as one committed by one Indian against another within the meaning of the first exception to 18 U.S.C. Sec. 1152. Put more simply, the nonmember Indian should be treated as a non-Indian.

In my original dissent, I lumped all the discriminatory possibilities to which the majority subjected the nonmember Indian under the heading of equal protection. The majority in its original and revised opinion addresses the equal protection issue and concludes that there is a rational basis for subjecting the nonmember to tribal jurisdiction and that, in any event, in this case Duro is not being discriminated against on the basis of race.

On reflection, I have concluded that it is not essential to my position to fit the facts of this case to the analytics of the equal protection doctrines. Rather, I have employed the discriminatory possibilities this case suggests to inform my interpretation of the applicable statutes and cases. These possibilities may, but need not, rise to the level of equal protection violations. Their existence suggests, however, that wise construction of the applicable law should reduce, if not eliminate, their existence.

The heart of the issue this case presents, as this dissent already has stated, is that the majority puts the offending nonmember Indian in a position different from, and less advantageous than, that of any other class of offender. The member Indian offender is "among his own," which presumably is frequently to his benefit. The non-Indian is protected by Oliphant, supra, from possibly harsh treatment by a tribal court animated by a bias against all non-Indians. And the Indian no longer enjoying the "special relationship" with the federal government enjoys the same protection as does the non-Indian. Only the nonmember Indian still enjoying that "special relationship" must be subject to a tribunal that, on its face, suggests the possibility of prejudice against him.

It is not beyond the pale of proper judicial behavior to employ an interpretation of the law that eliminates this possibility. In the final analysis, the majority has suggested only two rather weak reasons for not doing so, viz., to enhance tribal sovereignty and to avoid burdening U.S. Attorneys and their staffs. Inasmuch as the contribution to these ends made by the majority's approach is only marginal at best, I would hold that the price demanded for these modest achievements is too high. Tribes would lose no meaningful sovereignty under my analysis nor would U.S. Attorneys become overburdened.

I respectfully dissent.