211. Duro v. Reina, May29, 1990
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328 from certain foods or certain modes of transportation . It would be true, we think (though no case of ours has involved the point), that a State would be “prohibiting the free exercise [of religion]” if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. . . . Respondents in the present case, however, seek to carry the meaning of “prohibiting the free exercise [of religion]” one large step further . They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that “prohibiting the free exercise [of religion]” includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. . . . Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. It is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use. . . . But to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs. * * * Because respondents’ ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon may, consistent with the Free Exercise Clause, deny respondents unemployment compensation when their dismissal results from use of the drug. The decision of the Oregon Supreme Court is accordingly reversed. [494 U.S. Reports, 874, 877–78, 890.] 211. Duro v. Reina May 29, 1990 Having held, in Oliphant v. Suquamish Indian Tribe (1978), that tribal courts do not have criminal jurisdiction over non-Indians, the United States Supreme Court here further limited tribal jurisdiction by deciding that it does not apply either to Indians who are nonmembers of the tribe. Two justices dissented. . . . . 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. . . . 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 nonIndians 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 329 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 . 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...