Anthony Kennedy

“ 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. ”

“ 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." ”

“ 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 decision that nonmembers, who share relevant jurisdictional characteristics of non-Indians, should share the same jurisdictional status.
Respondents and amici contend that without tribal jurisdiction over minor offenses committed by nonmember Indians, no authority will have jurisdiction over such offenders. ”

“ Petitioner's general status as an Indian says little about his consent to the exercise of authority over him by a particular tribe.
The Court of Appeals sought to address some of these concerns by adopting a "contacts" test to determine which non-member Indians might be subject to tribal jurisdiction. But the rationale of the test would apply to non-Indians on the reservation as readily as to Indian nonmembers. Many non-Indians reside on reservations, and have close ties to tribes through marriage or long employment. ”

“ Tribal law enforcement authorities have the power to restrain those who disturb public order on the reservation, and if necessary, to eject them. Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities.
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. ”

“ We think the rationale of our decisions in Oliphant and Wheeler, as well as subsequent cases, compels the conclusion that Indian tribes lack jurisdiction over persons who are not tribe members. Our discussion of tribal sovereignty in Wheeler bears most directly on this case. We were consistent in describing retained tribal sovereignty over the defendant in terms of a tribe's power over its members. Indeed, our opinion in Wheeler stated that the tribes "cannot try nonmembers in tribal courts." ”

“ Again we relied upon the view of tribal sovereignty set forth in Oliphant:
"Though Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." 450 U.S., at 565, 101 S.Ct., at 1258 (footnote omitted) .
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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ On the contrary, wide variations in customs, art, language, and physical characteristics separate the tribes, and their history has been marked by both intertribal alliances and animosities. See generally Smithsonian Institution, Handbook of North American Indians (1983) ; H. Driver, Indians of North America (1961) ”