dissenting:
I respectfully dissent. Oliphant should govern this case. Two commentators re*1365cently have concluded that, for purposes of determining the criminal jurisdiction of tribal courts, Olipkant and the history of relevant treaties and statutes suggest that nonmember Indians and non-Indians be treated the same. Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, 33 Stan.L.Rev. 979, 1022 n. 251 (1981); see Comment, Jurisdiction over Nonmember Indians on Reservations, 1980 Ariz.St.LJ. 727, 737-49. The Supreme Court made this conclusion explicit in United States v. Wheeler, 435 U.S. 313, 322, 324, 326-27, 328, 98 S.Ct. 1079, 1085, 1086, 1087-88, 1088, 55 L.Ed.2d 303 (1978), by its emphasis of tribal sovereignty as the source of the tribe’s criminal jurisdiction over its members.
Independently of these authorities, the equal protection clause of the Indian Civil Rights Act requires affirmance of the district court. To embrace the differential treatment of non-Indians and nonmember Indians within the context of this case is to employ a classification based upon race. It is true that special treatment of Indians in many situations has not been treated as being based on race but rather on the unique sovereignty of Indian Tribes. See United States v. Antelope, 430 U.S. 641, 645-47, 97 S.Ct. 1395, 1398-99, 51 L.Ed.2d 701 (1977). That sovereignty provides no proper basis for depriving a nonmember Indian of an immunity from tribal jurisdiction enjoyed by a non-Indian. Neither does the fact that the determination of who is an Indian sometimes involves factors other than race.
Laws based on racial classifications are subject to strict scrutiny. Extending tribal court criminal jurisdiction to nonmember Indians might incrementally aid law enforcement on reservations. But then so might its extension to non-Indians. However, clearly these extensions are not necessary to achieve a compelling governmental interest. Therefore it fails the applicable equal protection test.
Different tribes do things differently. Indian law traditionally respects the tribes’ individuality. See Clinton, supra, at 984-91. Limiting a tribal court’s criminal jurisdiction to members of its own tribe is quite consistent with the self-determination of Indian tribes. To bar its extension to nonmember Indians does not significantly impair tribal self-determination.