[3] In 1926, the Bureau of Indian Affairs (BIA) created a Pima Advisory Council and in 1934 the two tribes adopted a constitution for the reservation.

It read the Supreme Court's decision in United States v. Wheeler, 435 U.S. 313 (1978), which stated that tribal courts do not have jurisdiction over nonmembers, as supported by an "equivocal" history, and concluded that federal statutory law allowed tribal jurisdiction over all Indians, not simply members.

In an opinion by Justice Kennedy, the Court described this case as falling at the "intersection" of its prior decisions in Oliphant and Wheeler.

In Oliphant, the Court held that the inherent sovereignty of Indian tribes did not allow them to have criminal jurisdiction over non-Indians who commit crimes on the reservation.

And in Wheeler, the Court held that tribes retain their jurisdiction to prosecute their members for crimes committed on the reservation.

The question this case posed was whether "the sovereignty retained by the tribes in their dependent status within our scheme of government includes the power of criminal jurisdiction over nonmembers."

Because Duro was not a member of the Salt River Pima-Maricopa Indian Community, that tribe did not have the power to prosecute him for the crime of illegally firing a weapon.

"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.

Written opinions of the Solicitor General of the Department of the Interior consistently affirmed the power of the tribes over their own members, but went no further.

The Court could not ignore the fact that Duro was also a citizen of the United States, entitled to all the privileges and immunities that attach to that status.

Criminal trial and punishment is so serious and intrusion on personal liberty that its exercise over non-Indian citizens was a power necessarily surrendered by the tribes in their submission to the overriding sovereignty of the United States."

Accordingly, Justice Brennan believed the Court should have read the historical evidence in such a way that supported Congress's intent to allow Indian tribes to exert jurisdiction over nonmembers.

Nor had the Court ever held that participation in the political process was a prerequisite to exercising criminal jurisdiction over a citizen.

§ 1301(2) in United States v. Lara (2004), upholding the amendment to the Indian Civil Rights Act and effectively overturning Duro v. Reina.