TRIBAL COURTS, DOUBLE JEOPARDY AND THE DUAL SOVEREIGNTY DOCTRINE

• NCJ Number: 55779
• Journal: Gonzaga Law Review Volume: 13 Issue: 2 Dated: (1978) Pages: 467-492
• Author(s): R ZOBEL
• Date Published: 1978
• Length: 26 pages
• Corporate Author: Gonzaga University
• Publication Format: Article
• Publication Type: Historical Overview
• Language: English
• Country: United States of America

Annotation

THIS ARTICLE DISCUSSES WHETHER THE DOUBLE JEOPARDY CLAUSE BARS FEDERAL PROSECUTION OF AN INDIAN DEFENDANT BECAUSE OF HIS EARLIER CONVICTION IN A TRIBAL COURT FOR AN OFFENSE ARISING FROM THE SAME ACTS.

Abstract

THE COMMENT DISCUSSES THE FOLLOWING: (1) THE HISTORY, RATIONALE, AND CRITICISM OF THE DUAL SOVEREIGNTY DOCTRINE; (2) TWO RECENT CASES DECIDED BY THE COURTS OF APPEALS EXAMINING THE ISSUE; (3) THE STATUS OF TRIBAL GOVERNMENTS IN OUR POLITICAL SYSTEM AND THE SOURCE OF AUTHORITY FOR TRIBAL COURTS; AND (4) THE APPLICATION OF THE VARIOUS ELEMENTS TO MULTIPLE PROSECUTIONS BY TRIBAL AND FEDERAL DISTRICT COURTS. THE FIFTH AMENDMENT PROVIDES THAT NO PERSON 'SHALL BE SUBJECT FOR THE SAME OFFENSE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB.' BEFORE THIS PROVISION APPLIES, HOWEVER, THE PROSECUTION MUST BE IN THE COURTS OF THE SAME SOVEREIGN; IN OUR SYSTEM, PROSECUTION FOR THE SAME OFFENSE BY BOTH THE UNITED STATES AND A STATE DOES NOT CONSTITUTE DOUBLE JEOPARDY. IN UNITED STATES VERSUS WALKING CROW (1977) THE EIGHT CIRCUIT COURT OF APPEALS REJECTED THE CLAIM THAT INDIAN TRIBAL COURTS AND U.S. COURTS DERIVE THEIR AUTHORITY FROM THE SAME SOVEREIGN. IN THIS DENIAL, IT DISAGREED WITH THE DECISION OF THE NINTH CIRCUIT COURT OF APPEALS IN UNITED STATES VERSUS WHEELER (1977); THE WALKING CROW DECISION REJECTED THE ARGUMENT IN WHEELER THAT CONGRESS' PLENARY CONTROL OVER CRIMINAL JURISDICTION OF TRIBAL COURTS MADE THE TRIBAL COURTS PART OF THE FEDERAL SYSTEM. THE MAJOR CRIMES ACT OF 1970, HOWEVER, DOES PROVIDE FEDERAL JURISDICTION OVER 14 OF THE MOST SERIOUS CRIMES, AND THE INDIAN CIVIL RIGHTS ACT OF 1968 PROVIDES PROTECTION AGAINST ARBITRARY AND OPPRESSIVE ACTION BY TRIBAL GOVERNMENTS. IN CONCLUSION, ALTHOUGH THE DUAL SOVEREIGNTY DOCTRINE IS SUBJECT TO CRITICISM IN THAT IT MAY CREATE HARDSHIP FOR SOME INDIVIDUALS, ITS RATIONALE APPLIES AS WELL TO TRIBAL COURTS AS TO STATE COURTS. A TRIBAL COURT CONVICTION IS NOT A CONVICTION BY THE ARM OF THE FEDERAL GOVERNMENT, BUT IS AN EXERCISE OF INHERENT POWER BY A SEPARATE SOVEREIGN WHOSE POWERS HAVE BEEN RECOGNIZED AND LIMITED, THOUGH NOT CREATED, BY THE FEDERAL GOVERNMENT.