Walker, Ex Parte Calvin Gary

PD-0358_0363-16

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/9/2016 3:26:19 PM

Accepted 6/10/2016 10:57:11 AM

PD NO. 0358-16 ABEL ACOSTA

CLERK

PD NO. 0359-16

PD NO. 0360-16

PD NO. 0361-16

PD NO. 0362-16

PD NO. 0363-16

IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

June 10, 2016 CALVIN WALKER, Petitioner

VS.

THE STATE OF TEXAS, Respondent

_____________________________________________________________________________

SUPPLEMENT TO WALKER’S

PETITION FOR DISCRETIONARY REVIEW

______________________________________________________________________________

TO THE HONORABLE JUSTICES OF SAID COURT:

The Supreme Court of the United States recently decided an important case involving

double jeopardy and the dual-sovereignty doctrine. See Puerto Rico v. Sanchez Valle, No. 15-108,

597 U.S. ___ (June 9, 2016), attached as Appendix A. In that case, the Court decided that Puerto

Rico derives its prosecutorial power from the federal government, and therefore, it is not a separate

sovereign for double jeopardy purposes. See id. Justice Kagan delivered the Court’s opinion, in

which Chief Justice Roberts and Justices Kennedy, Ginsburg, and Alito joined. Justice Ginsburg

also authored a separate, concurring opinion in which Justice Thomas joined. Justice Ginsburg’s

concurrence significantly impacts the analysis of whether Walker presented a viable claim for

relief in his pretrial habeas applications.

In the district court, Walker contended that the six state indictments filed against him were

barred from prosecution because he had resolved the very same alleged criminal conduct in a

previous federal plea agreement. The district court denied the relief sought by the habeas

applications, and Walker appealed. Both the district court and the court of appeals expressed doubt

as to whether the so-called Bartkus exception to the dual-sovereignty doctrine was an exception at

all. See Ex parte Walker, __ S.W.3d __, 2016 WL 908374 at *6-9 (Tex. App.—Beaumont March

9, 2016); District Court Order at 2-3. Justice Ginsburg’s concurrence reveals that at least two

Justices of the Supreme Court believe that such an exception does exist. Even more relevant here,

the concurrence also makes it clear that at least two Justices believe that a person should not be

subject to multiple punishments for the same criminal conduct by separate sovereigns, without

regard to the inter-relatedness of the two sovereigns. Justice Ginsburg wrote:

I join in full the Court’s opinion, which cogently applies long prevailing doctrine.

I write only to flag a larger question that bears fresh examination in an appropriate

case. The double jeopardy proscription is intended to shield individuals from the

harassment of multiple prosecutions for the same misconduct. Green v. United

States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Current “separate

sovereigns” doctrine hardly serves that objective. States and Nation are “kindred

systems,” yet “parts of ONE WHOLE.” The Federalist No. 82, p. 245 (J. Hopkins

ed., 2d ed. 1802) (reprint 2008). Within that whole is it not “an affront to human

dignity,” Abbate v. United States, 359 U.S. 187, 203, 79 S.Ct. 666, 3 L.Ed.2d 729

(1959) (Black, J., dissenting), “inconsistent with the spirit of [our] Bill of Rights,”

Developments in the Law—Criminal Conspiracy, 72 Harv. L.Rev. 920, 968 (1959),

to try or punish a person twice for the same offense? Several jurists and

commentators have suggested that the question should be answered with a

resounding yes: Ordinarily, a final judgment in a criminal case, just as a final

judgment in a civil case, should preclude renewal of the fray anyplace in the

Nation. See Bartkus v. Illinois, 359 U.S. 121, 150, 79 S.Ct. 676, 3 L.Ed.2d 684

(1959) (Black, J., dissenting); United States v. All Assets of G.P.S. Automotive

Corp., 66 F.3d 483 (C.A.2 1995) (Calabresi, J.); Franck, An International Lawyer

Looks at the Bartkus Rule, 34 N.Y.U.L.Rev. 1096 (1959); Grant, Successive

Prosecutions by State and Nation: Common Law and British Empire Comparisons,

4 UCLA L.Rev. 1 (1956); Grant, The Lanza Rule of Successive Prosecutions, 32

Colum. L.Rev. 1309 (1932). See also 6 W. LaFave, J. Israel, N. King, & O. Kerr,

Criminal Procedure § 25.5(a), p. 851 (4th ed. 2015) (“Criticism of Abbate [‘s

separate sovereign exception] intensified after the Supreme Court held that the

Double Jeopardy Clause of the Fifth Amendment was also applicable to the

states....“ (citing, inter alia, Braun, Praying to False Sovereigns: The Rule

Permitting Successive Prosecutions in the Age of Cooperative Federalism, 20 Am.

J.Crim. L. 1 (1992))). The matter warrants attention in a future case in which a

defendant faces successive prosecutions by parts of the whole USA.

Sanchez Valle, No. 15-108, 579 U.S. __ (Ginsburg, J., concurring).

The key takeaway from Sanchez Valle with respect to Walker’s claims is that one of the

most liberal and one of the conservative Justices on our country’s highest court agree that a federal

prosecution should bar a state prosecution for the same conduct. The degree of cooperation

between those sovereigns is not the issue. The issue is whether the same conduct is prosecuted.

The recent decision in Sanchez Valle merits remand to the district court for proper

consideration of Walker’s habeas applications.

Respectfully submitted,

DEGUERIN, DICKSON, HENNESSY & WARD

/s/Dick DeGuerin

Dick DeGuerin

State Bar No. 05638000

Matt Hennessy

State Bar No. 00787677

1018 Preston, 7th Floor

Houston, Texas 77002

(713) 223-5959 Telephone

(713) 223-9231 Facsimile

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Supplement to Walker’s

Petition for Discretionary Review, has been delivered to the following parties via electronic filing

on June 8, 2016:

Wayln G. Thompson

Assistant District Attorney

1085 Pearl St.

Beaumont, Texas 77701

Lisa McMinn

State Prosecuting Attorney

P O Box 13406

Austin, Texas 78711

/s/Dick DeGuerin

Dick DeGuerin

(Slip Opinion) OCTOBER TERM, 2015 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

COMMONWEALTH OF PUERTO RICO v. SANCHEZ

VALLE ET AL.

CERTIORARI TO THE SUPREME COURT OF PUERTO RICO

No. 15–108. Argued January 13, 2016—Decided June 9, 2016

Respondents Luis Sánchez Valle and Jaime Gómez Vázquez each sold a

gun to an undercover police officer. Puerto Rican prosecutors indict­

ed them for illegally selling firearms in violation of the Puerto Rico

Arms Act of 2000. While those charges were pending, federal grand

juries also indicted them, based on the same transactions, for viola­

tions of analogous U. S. gun trafficking statutes. Both defendants

pleaded guilty to the federal charges and moved to dismiss the pend­

ing Commonwealth charges on double jeopardy grounds. The trial

court in each case dismissed the charges, rejecting prosecutors’ ar­

guments that Puerto Rico and the United States are separate sover­

eigns for double jeopardy purposes and so could bring successive

prosecutions against each defendant. The Puerto Rico Court of Ap­

peals consolidated the cases and reversed. The Supreme Court of

Puerto Rico granted review and held, in line with the trial court, that

Puerto Rico’s gun sale prosecutions violated the Double Jeopardy

Clause.

Held: The Double Jeopardy Clause bars Puerto Rico and the United

States from successively prosecuting a single person for the same

conduct under equivalent criminal laws. Pp. 5–18.

(a) Ordinarily, a person cannot be prosecuted twice for the same of­

fense. But under the dual-sovereignty doctrine, the Double Jeopardy

Clause does not bar successive prosecutions if they are brought by

separate sovereigns. See, e.g., United States v. Lanza, 260 U. S. 377,

382. Yet “sovereignty” in this context does not bear its ordinary

meaning. This Court does not examine the extent of control that one

prosecuting entity wields over the other, the degree to which an enti­

ty exercises self-governance, or a government’s more particular abil­

ity to enact and enforce its own criminal laws. Rather, the test hinges

2 PUERTO RICO v. SANCHEZ VALLE

Syllabus

on a single criterion: the “ultimate source” of the power undergird-

ing the respective prosecutions. United States v. Wheeler, 435 U. S.

313, 320. If two entities derive their power to punish from independ­

ent sources, then they may bring successive prosecutions. Converse­

ly, if those entities draw their power from the same ultimate source,

then they may not.

Under that approach, the States are separate sovereigns from the

Federal Government and from one another. Because States rely on

“authority originally belonging to them before admission to the Union

and preserved to them by the Tenth Amendment,” state prosecutions

have their roots in an “inherent sovereignty” unconnected to the U. S.

Congress. Heath v. Alabama, 474 U. S. 82, 89. For similar reasons,

Indian tribes also count as separate sovereigns. A tribe’s power to

punish pre-existed the Union, and so a tribal prosecution, like a

State’s, is “attributable in no way to any delegation . . . of federal au­

thority.” Wheeler, 435 U. S., at 328. Conversely, a municipality can­

not count as a sovereign distinct from a State, because it receives its

power, in the first instance, from the State. See, e.g., Waller v. Flori-

da, 397 U. S. 387, 395. And most pertinent here, this Court conclud­

ed in the early 20th century that U. S. territories—including an ear­

lier incarnation of Puerto Rico itself—are not sovereigns distinct from

the United States. Grafton v. United States, 206 U. S. 333. The

Court reasoned that “the territorial and federal laws [were] creations

emanating from the same sovereignty,” Puerto Rico v. Shell Co. (P.

R.), Ltd., 302 U. S. 253, 264, and so federal and territorial prosecu­

tors do not derive their powers from independent sources of authori­

ty. Pp. 5–11.

(b) The Grafton and Shell Co. decisions, in and of themselves, do

not control here. In the mid-20th century, Puerto Rico became a new

kind of political entity, still closely associated with the United States

but governed in accordance with, and exercising self-rule through, a

popularly-ratified constitution. The magnitude of that change re­

quires consideration of the dual-sovereignty question anew. Yet the

result reached, given the historical test applied, ends up the same.

Going back as far as the doctrine demands—to the “ultimate source”

of Puerto Rico’s prosecutorial power—reveals, once again, the U. S.

Congress. Wheeler, 435 U. S., at 320. Pp. 12–18.

(1) In 1950, Congress enacted Public Law 600, which authorized

the people of Puerto Rico to organize a government pursuant to a

constitution of their own adoption. The Puerto Rican people capital­

ized on that opportunity, calling a constitutional convention and

overwhelmingly approving the charter it drafted. Once Congress ap­

proved that proposal—subject to several important conditions accept­

ed by the convention—the Commonwealth of Puerto Rico, a new po­

Cite as: 579 U. S. ____ (2016) 3

Syllabus

litical entity, came into being.

Those constitutional developments were of great significance—and,

indeed, made Puerto Rico “sovereign” in one commonly understood

sense of that term. At that point, Congress granted Puerto Rico a de­

gree of autonomy comparable to that possessed by the States. If the

dual-sovereignty doctrine hinged on measuring an entity’s self-

governance, the emergence of the Commonwealth would have result­

ed as well in the capacity to bring the kind of successive prosecutions

attempted here. Pp. 13–14.

(2) But the dual-sovereignty test focuses not on the fact of self-

rule, but on where it first came from. And in identifying a prosecut­

ing entity’s wellspring of authority, the Court has insisted on going

all the way back—beyond the immediate, or even an intermediate, lo­

cus of power to what is termed the “ultimate source.” On this settled

approach, Puerto Rico cannot benefit from the dual-sovereignty doc­

trine. True enough, that the Commonwealth’s power to enact and en­

force criminal law now proceeds, just as petitioner says, from the

Puerto Rico Constitution as “ordain[ed] and establish[ed]” by “the

people.” P. R. Const., Preamble. But back of the Puerto Rican people

and their Constitution, the “ultimate” source of prosecutorial power

remains the U. S. Congress. Congress, in Public Law 600, authorized

Puerto Rico’s constitution-making process in the first instance, and

Congress, in later legislation, both amended the draft charter and

gave it the indispensable stamp of approval. Put simply, Congress

conferred the authority to create the Puerto Rico Constitution, which

in turn confers the authority to bring criminal charges. That makes

Congress the original source of power for Puerto Rico’s prosecutors—

as it is for the Federal Government’s. The island’s Constitution, sig­

nificant though it is, does not break the chain. Pp. 14–18.

Affirmed.

KAGAN, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, GINSBURG, and ALITO, JJ., joined. GINSBURG, J.,

filed a concurring opinion, in which THOMAS, J., joined. THOMAS, J.,

filed an opinion concurring in part and concurring in the judgment.

BREYER, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.

Cite as: 579 U. S. ____ (2016) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–108

_________________

COMMONWEALTH OF PUERTO RICO, PETITIONER v.

LUIS M. SANCHEZ VALLE, ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

PUERTO RICO

[June 9, 2016]

JUSTICE KAGAN delivered the opinion of the Court.

The Double Jeopardy Clause of the Fifth Amendment

prohibits more than one prosecution for the “same of­

fence.” But under what is known as the dual-sovereignty

doctrine, a single act gives rise to distinct offenses—and

thus may subject a person to successive prosecutions—if it

violates the laws of separate sovereigns. To determine

whether two prosecuting authorities are different sover­

eigns for double jeopardy purposes, this Court asks a

narrow, historically focused question. The inquiry does

not turn, as the term “sovereignty” sometimes suggests, on

the degree to which the second entity is autonomous from

the first or sets its own political course. Rather, the issue

is only whether the prosecutorial powers of the two juris­

dictions have independent origins—or, said conversely,

whether those powers derive from the same “ultimate

source.” United States v. Wheeler, 435 U. S. 313, 320

(1978).

In this case, we must decide if, under that test, Puerto

Rico and the United States may successively prosecute a

single defendant for the same criminal conduct. We hold

2 PUERTO RICO v. SANCHEZ VALLE

Opinion of the Court

they may not, because the oldest roots of Puerto Rico’s

power to prosecute lie in federal soil.

I

A

Puerto Rico became a territory of the United States in

1898, as a result of the Spanish-American War. The

treaty concluding that conflict ceded the island, then a

Spanish colony, to the United States, and tasked Congress

with determining “[t]he civil rights and political status” of

its inhabitants. Treaty of Paris, Art. 9, Dec. 10, 1898, 30

Stat. 1759. In the ensuing hundred-plus years, the United

States and Puerto Rico have forged a unique political

relationship, built on the island’s evolution into a constitu­

tional democracy exercising local self-rule.

Acting pursuant to the U. S. Constitution’s Territory

Clause, Congress initially established a “civil government”

for Puerto Rico possessing significant authority over in­

ternal affairs. Organic Act of 1900, ch. 191, 31 Stat. 77;

see U. S. Const., Art. IV, §3, cl. 2 (granting Congress the

“Power to dispose of and make all needful Rules and Regu­

lations respecting the Territory or other Property belong­

ing to the United States”). The U. S. President, with the

advice and consent of the Senate, appointed the governor,

supreme court, and upper house of the legislature; the

Puerto Rican people elected the lower house themselves.

See §§17–35, 31 Stat. 81–85. Federal statutes generally

applied (as they still do) in Puerto Rico, but the newly

constituted legislature could enact local laws in much the

same way as the then-45 States. See §§14–15, 32, id., at

80, 83–84; Puerto Rico v. Shell Co. (P. R.), Ltd., 302 U. S.

253, 261 (1937).

Over time, Congress granted Puerto Rico additional

autonomy. A federal statute passed in 1917, in addition to

giving the island’s inhabitants U. S. citizenship, replaced

the upper house of the legislature with a popularly elected

Cite as: 579 U. S. ____ (2016) 3

Opinion of the Court

senate. See Organic Act of Puerto Rico, ch. 145, §§5, 26,

39 Stat. 953, 958. And in 1947, an amendment to that law

empowered the Puerto Rican people to elect their own

governor, a right never before accorded in a U. S. territory.

See Act of Aug. 5, 1947, ch. 490, §1, 61 Stat. 770.

Three years later, Congress enabled Puerto Rico to

embark on the project of constitutional self-governance.

Public Law 600, “recognizing the principle of government

by consent,” authorized the island’s people to “organize a

government pursuant to a constitution of their own adop­

tion.” Act of July 3, 1950, §1, 64 Stat. 319. Describing

itself as “in the nature of a compact,” the statute submit­

ted its own terms to an up-or-down referendum of Puerto

Rico’s voters. Ibid. According to those terms, the eventual

constitution had to “provide a republican form of govern­

ment” and “include a bill of rights”; all else would be

hashed out in a constitutional convention. §2, 64 Stat.

319. The people of Puerto Rico would be the first to de­

cide, in still another referendum, whether to adopt that

convention’s proposed charter. See §3, 64 Stat. 319. But

Congress would cast the dispositive vote: The constitution,

Public Law 600 declared, would become effective only

“[u]pon approval by the Congress.” Ibid.

Thus began two years of constitution-making for the

island. The Puerto Rican people first voted to accept

Public Law 600, thereby triggering a constitutional con­

vention. And once that body completed its work, the

island’s voters ratified the draft constitution. Congress

then took its turn on the document: Before giving its

approval, Congress removed a provision recognizing vari­

ous social welfare rights (including entitlements to food,

housing, medical care, and employment); added a sentence

prohibiting certain constitutional amendments, including

any that would restore the welfare-rights section; and

inserted language guaranteeing children’s freedom to

attend private schools. See Act of July 3, 1952, 66 Stat.

4 PUERTO RICO v. SANCHEZ VALLE

Opinion of the Court

327; Draft Constitution of the Commonwealth of Puerto

Rico (1952), in Documents on the Constitutional Relation­

ship of Puerto Rico and the United States 199 (M. Ramirez

Lavandero ed., 3d ed. 1988). Finally, the constitution

became law, in the manner Congress had specified, when

the convention formally accepted those conditions and the

governor “issue[d] a proclamation to that effect.” Ch. 567,

66 Stat. 328.

The Puerto Rico Constitution created a new political

entity, the Commonwealth of Puerto Rico—or, in Spanish,

Estado Libre Asociado de Puerto Rico. See P. R. Const.,

Art. I, §1. Like the U. S. Constitution, it divides political

power into three branches—the “legislative, judicial and

executive.” Art. I, §2. And again resonant of American

founding principles, the Puerto Rico Constitution de­

scribes that tripartite government as “republican in form”

and “subordinate to the sovereignty of the people of Puerto

Rico.” Ibid. The Commonwealth’s power, the Constitution

proclaims, “emanates from the people and shall be exer­

cised in accordance with their will, within the terms of the

compact agreed upon between the people of Puerto Rico

and the United States.” Art. I, §1.

B

We now leave the lofty sphere of constitutionalism for

the grittier precincts of criminal law. Respondents Luis

Sánchez Valle and Jaime Gómez Vázquez (on separate

occasions) each sold a gun to an undercover police officer.

Commonwealth prosecutors indicted them for, among

other things, selling a firearm without a permit in viola­

tion of the Puerto Rico Arms Act of 2000. See 25 Laws

P. R. Ann. §458 (2008). While those charges were pend­

ing, federal grand juries indicted Sánchez Valle and

Gómez Vázquez, based on the same transactions, for

violations of analogous U. S. gun trafficking statutes. See

18 U. S. C. §§922(a)(1)(A), 923(a), 924(a)(1)(D), 924(a)(2).

Cite as: 579 U. S. ____ (2016) 5

Opinion of the Court

Both defendants pleaded guilty to those federal charges.

Following their pleas, Sánchez Valle and Gómez

Vázquez moved to dismiss the pending Commonwealth

charges on double jeopardy grounds. The prosecutors in

both cases opposed those motions, arguing that Puerto

Rico and the United States are different sovereigns for

double jeopardy purposes, and so could bring successive

prosecutions against each of the two defendants. The trial

courts rejected that view and dismissed the charges. See

App. to Pet. for Cert. 307a–352a. But the Puerto Rico

Court of Appeals, after consolidating the two cases, re­

versed those decisions. See id., at 243a–306a.

The Supreme Court of Puerto Rico granted review and

held that Puerto Rico’s gun sale prosecutions violated the

Double Jeopardy Clause. See id., at 1a–70a. The majority

reasoned that, under this Court’s dual-sovereignty doc­

trine, “what is crucial” is “[t]he ultimate source” of Puerto

Rico’s power to prosecute. Id., at 19a; see id., at 20a (“The

use of the word ‘sovereignty’ in other contexts and for

other purposes is irrelevant”). Because that power origi­

nally “derived from the United States Congress”—i.e., the

same source on which federal prosecutors rely—the Com­

monwealth could not retry Sánchez Valle and Gómez

Vázquez for unlawfully selling firearms. Id., at 66a.

Three justices disagreed, believing that the Common­

wealth and the United States are separate sovereigns.

See id., at 71a–242a.

We granted certiorari, 576 U. S. ___ (2015), to determine

whether the Double Jeopardy Clause bars the Federal

Government and Puerto Rico from successively prosecut­

ing a defendant on like charges for the same conduct. We

hold that it does, and so affirm.

II

A

This case involves the dual-sovereignty carve-out from

6 PUERTO RICO v. SANCHEZ VALLE

Opinion of the Court

the Double Jeopardy Clause. The ordinary rule under

that Clause is that a person cannot be prosecuted twice for

the same offense. See U. S. Const., Amdt. 5 (“nor shall

any person be subject for the same offence to be twice put

in jeopardy of life or limb”).1 But two prosecutions, this

Court has long held, are not for the same offense if

brought by different sovereigns—even when those actions

target the identical criminal conduct through equivalent

criminal laws. See, e.g., United States v. Lanza, 260 U. S.

377, 382 (1922). As we have put the point: “[W]hen the

same act transgresses the laws of two sovereigns, it cannot

be truly averred that the offender has been twice punished

for the same offence; but only that by one act he has com­

mitted two offences.” Heath v. Alabama, 474 U. S. 82, 88

(1985) (internal quotation marks omitted). The Double

Jeopardy Clause thus drops out of the picture when the

“entities that seek successively to prosecute a defendant

for the same course of conduct [are] separate sovereigns.”

Ibid.

Truth be told, however, “sovereignty” in this context

does not bear its ordinary meaning. For whatever reason,

the test we have devised to decide whether two govern­

ments are distinct for double jeopardy purposes overtly

disregards common indicia of sovereignty. Under that

standard, we do not examine the “extent of control” that

“one prosecuting authority [wields] over the other.”

Wheeler, 435 U. S., at 320. The degree to which an entity

exercises self-governance—whether autonomously manag­

ing its own affairs or continually submitting to outside

direction—plays no role in the analysis. See Shell Co., 302

U. S., at 261–262, 264–266. Nor do we care about a gov­

——————

1 Because the parties in this case agree that the Double Jeopardy

Clause applies to Puerto Rico, we have no occasion to consider that

question here. See Brief for Petitioner 19–21; Brief for Respondents

20, n. 4; see also Brief for United States as Amicus Curiae 10, n. 1

(concurring).

Cite as: 579 U. S. ____ (2016) 7

Opinion of the Court

ernment’s more particular ability to enact and enforce its

own criminal laws. See Waller v. Florida, 397 U. S. 387,

391–395 (1970). In short, the inquiry (despite its label)

does not probe whether a government possesses the usual

attributes, or acts in the common manner, of a sovereign

entity.2

Rather, as Puerto Rico itself acknowledges, our test

hinges on a single criterion: the “ultimate source” of the

power undergirding the respective prosecutions. Wheeler,

435 U. S., at 320; see Brief for Petitioner 26. Whether two

prosecuting entities are dual sovereigns in the double

jeopardy context, we have stated, depends on “whether

[they] draw their authority to punish the offender from

distinct sources of power.” Heath, 474 U. S., at 88. The

inquiry is thus historical, not functional—looking at the

deepest wellsprings, not the current exercise, of prosecuto­

rial authority. If two entities derive their power to punish

from wholly independent sources (imagine here a pair of

parallel lines), then they may bring successive prosecu­

tions. Conversely, if those entities draw their power from

the same ultimate source (imagine now two lines emerging

from a common point, even if later diverging), then they

——————

2 The dissent, ignoring our longstanding precedent to the contrary,

see supra, at 6–7; infra, at 7–11, advances an approach of just this

stripe: Its seven considerations all go to the question whether the

Commonwealth, by virtue of Public Law 600, gained “the sovereign

authority to enact and enforce” its own criminal laws. Post, at 5 (opin­

ion of BREYER, J.). Our disagreement with the dissent arises entirely

from its use of this test. If the question is whether, after the events of

1950–1952, Puerto Rico had authority to enact and enforce its own

criminal laws (or, slightly differently phrased, whether Congress then

decided that it should have such autonomy), the answer (all can and do

agree) is yes. See infra, at 13–17. But as we now show, that is not the

inquiry our double jeopardy law has made relevant: To the contrary, we

have rejected that approach again and again—and so reached results

inconsistent with its use. See, e.g., Heath v. Alabama, 474 U. S. 82, 88–

91 (1985); Waller v. Florida, 397 U. S. 387, 391–395 (1970); see infra, at

7–11.

8 PUERTO RICO v. SANCHEZ VALLE

Opinion of the Court

may not.3

Under that approach, the States are separate sovereigns

from the Federal Government (and from one another). See

Abbate v. United States, 359 U. S. 187, 195 (1959); Bartkus

v. Illinois, 359 U. S. 121, 132–137 (1959); Heath, 474 U. S.,

at 88. The States’ “powers to undertake criminal prosecu­

tions,” we have explained, do not “derive[ ] . . . from the

Federal Government.” Id., at 89. Instead, the States rely

on “authority originally belonging to them before admis­

sion to the Union and preserved to them by the Tenth

Amendment.” Ibid.; see U. S. Const., Amdt. 10 (“The

powers not delegated to the United States by the Constitu­

tion . . . are reserved to the States”); Blatchford v. Native

Village of Noatak, 501 U. S. 775, 779 (1991) (noting that

the States “entered the [Union] with their sovereignty

intact”). Said otherwise: Prior to forming the Union, the

States possessed “separate and independent sources of

power and authority,” which they continue to draw upon

in enacting and enforcing criminal laws. Heath, 474 U. S.,

at 89. State prosecutions therefore have their most an­

cient roots in an “inherent sovereignty” unconnected to,

and indeed pre-existing, the U. S. Congress. Ibid.4

——————

3 The Court has never explained its reasons for adopting this histori­

cal approach to the dual-sovereignty doctrine. It may appear counter­

intuitive, even legalistic, as compared to an inquiry focused on a gov­

ernmental entity’s functional autonomy. But that alternative would

raise serious problems of application. It would require deciding exactly

how much autonomy is sufficient for separate sovereignty and whether

a given entity’s exercise of self-rule exceeds that level. The results, we

suspect, would often be uncertain, introducing error and inconsistency

into our double jeopardy law. By contrast, as we go on to show, the

Court has easily applied the “ultimate source” test to classify broad

classes of governments as either sovereign or not for purposes of bar­

ring retrials. See infra, at 8–11.

4 Literalists might object that only the original 13 States can claim

such an independent source of authority; for the other 37, Congress

played some role in establishing them as territories, authorizing or

approving their constitutions, or (at the least) admitting them to the

Cite as: 579 U. S. ____ (2016) 9

Opinion of the Court

For similar reasons, Indian tribes also count as separate

sovereigns under the Double Jeopardy Clause. Originally,

this Court has noted, “the tribes were self-governing sov­

ereign political communities,” possessing (among other

capacities) the “inherent power to prescribe laws for their

members and to punish infractions of those laws.”

Wheeler, 435 U. S., at 322–323. After the formation of the

United States, the tribes became “domestic dependent

nations,” subject to plenary control by Congress—so hardly

“sovereign” in one common sense. United States v.

Lara, 541 U. S. 193, 204 (2004) (quoting Cherokee Nation

v. Georgia, 5 Pet. 1, 17 (1831)); see Santa Clara Pueblo v.

Martinez, 436 U. S. 49, 56 (1978) (“Congress has plenary

——————

Union. See U. S. Const., Art. IV, §3, cl. 1 (“New States may be admit­

ted by the Congress into this Union”). And indeed, that is the tack the

dissent takes. See post, at 3–4 (claiming that for this reason the

Federal Government is “the ‘source’ of [later-admitted] States’ legisla­

tive powers”). But this Court long ago made clear that a new State,

upon entry, necessarily becomes vested with all the legal characteris­

tics and capabilities of the first 13. See Coyle v. Smith, 221 U. S. 559,

566 (1911) (noting that the very meaning of “ ‘a State’ is found in the

powers possessed by the original States which adopted the Constitu­

tion”). That principle of “equal footing,” we have held, is essential to

ensure that the nation remains “a union of States[ alike] in power,

dignity and authority, each competent to exert that residuum of sover­

eignty not delegated to the United States.” Id., at 567; see Northwest

Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 203

(2009) (referring to the “fundamental principle of equal sovereignty”

among the States). Thus, each later-admitted State exercises its

authority to enact and enforce criminal laws by virtue not of congres­

sional grace, but of the independent powers that its earliest counter­

parts both brought to the Union and chose to maintain. See Coyle, 221

U. S., at 573 (“[W]hen a new State is admitted into the Union, it is so

admitted with all the powers of sovereignty and jurisdiction which

pertain to the original States”). The dissent’s contrary view—that, say,

Texas’s or California’s powers (including the power to make and enforce

criminal law) derive from the Federal Government—contradicts the

most fundamental conceptual premises of our constitutional order,

indeed the very bedrock of our Union.

10 PUERTO RICO v. SANCHEZ VALLE

Opinion of the Court

authority to limit, modify or eliminate the [tribes’] powers

of local self-government”). But unless and until Congress

withdraws a tribal power—including the power to prose­

cute—the Indian community retains that authority in its

earliest form. See Wheeler, 435 U. S., at 323. The “ulti­

mate source” of a tribe’s “power to punish tribal offenders”

thus lies in its “primeval” or, at any rate, “pre-existing”

sovereignty: A tribal prosecution, like a State’s, is “at­

tributable in no way to any delegation . . . of federal au­

thority.” Id., at 320, 322, 328; Santa Clara Pueblo, 436

U. S., at 56. And that alone is what matters for the double

jeopardy inquiry.

Conversely, this Court has held that a municipality

cannot qualify as a sovereign distinct from a State—no

matter how much autonomy over criminal punishment the

city maintains. See Waller, 397 U. S., at 395. Florida law,

we recognized in our pivotal case on the subject, treated a

municipality as a “separate sovereign entit[y]” for all

relevant real-world purposes: The city possessed broad

home-rule authority, including the power to enact criminal

ordinances and prosecute offenses. Id., at 391. But that

functional control was not enough to escape the double

jeopardy bar; indeed, it was wholly beside the point. The

crucial legal inquiry was backward-looking: Did the city

and State ultimately “derive their powers to prosecute

from independent sources of authority”? Heath, 474 U. S.,

at 90 (describing Waller’s reasoning). Because the munic­

ipality, in the first instance, had received its power from

the State, those two entities could not bring successive

prosecutions for a like offense.

And most pertinent here, this Court concluded in the

early decades of the last century that U. S. territories—

including an earlier incarnation of Puerto Rico itself—are

not sovereigns distinct from the United States. In Grafton

v. United States, 206 U. S. 333, 355 (1907), we held that

the Philippine Islands (then a U. S. territory, also ac­

Cite as: 579 U. S. ____ (2016) 11

Opinion of the Court

quired in the Spanish-American War) could not prosecute

a defendant for murder after a federal tribunal had ac­

quitted him of the same crime. We reasoned that whereas

“a State does not derive its powers from the United

States,” a territory does: The Philippine courts “exert[ed]

all their powers by authority of ” the Federal Government.

Id., at 354. And then, in Shell Co., we stated that “[t]he

situation [in Puerto Rico] was, in all essentials, the same.”

302 U. S., at 265. Commenting on a Puerto Rican statute

that overlapped with a federal law, we explained that this

“legislative duplication [gave] rise to no danger of a second

prosecution” because “the territorial and federal laws

[were] creations emanating from the same sovereignty.”

Id., at 264; see also Heath, 474 U. S., at 90 (noting

that federal and territorial prosecutors “d[o] not derive

their powers to prosecute from independent sources of

authority”).5

——————

5 The dissent’s theory, see supra, at 7, n. 2, cannot explain any of

these (many) decisions, whether involving States, Indian tribes, cities,

or territories. We have already addressed the dissent’s misunderstand­

ing with respect to the States, including the later-admitted ones. See

supra, at 8, and n. 4. This Court’s reasoning could not have been

plainer: The States (all of them) are separate sovereigns for double

jeopardy purposes not (as the dissent claims) because they exercise

authority over criminal law, but instead because that power derives

from a source independent of the Federal Government. See Heath, 474

U. S., at 89. So too for the tribes, see supra, at 9–10; and, indeed, here

the dissent’s contrary reasoning is deeply disturbing. According to the

dissent, Congress is in fact “the ‘source’ of the Indian tribes’ criminal-

enforcement power” because it has elected not to disturb the exercise of

that authority. Post, at 5. But beginning with Chief Justice Marshall

and continuing for nearly two centuries, this Court has held firm and

fast to the view that Congress’s power over Indian affairs does nothing

to gainsay the profound importance of the tribes’ pre-existing sover­

eignty. See Worcester v. Georgia, 6 Pet. 515, 559–561 (1832); Talton v.

Mayes, 163 U. S. 376, 384 (1896); Michigan v. Bay Mills Indian Com-

munity, 572 U. S. ___, ___–___ (2014) (slip op., at 4–5). And once again,

we have stated in no uncertain terms that the tribes are separate

sovereigns precisely because of that inherent authority. See Wheeler,

12 PUERTO RICO v. SANCHEZ VALLE

Opinion of the Court

B

With that background established, we turn to the ques­

tion presented: Do the prosecutorial powers belonging to

Puerto Rico and the Federal Government derive from

wholly independent sources? See Brief for Petitioner 26–

28 (agreeing with that framing of the issue). If so, the

criminal charges at issue here can go forward; but if not,

not. In addressing that inquiry, we do not view our deci­

sions in Grafton and Shell Co. as, in and of themselves,

controlling. Following 1952, Puerto Rico became a new

kind of political entity, still closely associated with the

United States but governed in accordance with, and exer­

cising self-rule through, a popularly ratified constitution.

The magnitude of that change requires us to consider the

dual-sovereignty question anew. And yet the result we

reach, given the legal test we apply, ends up the same.

Puerto Rico today has a distinctive, indeed exceptional,

status as a self-governing Commonwealth. But our ap­

proach is historical. And if we go back as far as our doc­

trine demands—to the “ultimate source” of Puerto Rico’s

——————

435 U. S., at 328. Next, the dissent cannot (and does not even try to)

explain our rule that a municipality is not a separate sovereign from a

State. See supra, at 10. As this Court has explicitly recognized, many

cities have (in the words of the dissent’s test) wide-ranging “authority

to make and enforce [their] own criminal laws,” post, at 5; still, they

cannot undertake successive prosecutions—because they received that

power from state governments, see Waller, 397 U. S., at 395. And

likewise (finally), the dissent fails to face up to our decisions that the

territories are not distinct sovereigns from the United States because

the powers they exercise are delegations from Congress. See Grafton v.

United States, 206 U. S. 333, 355 (1907); supra, at 10–11. That, of

course, is what makes them different from the current Philippines, see

post, at 2–3, whose relevance here is hard to fathom. As an independ­

ent nation, the Philippines wields prosecutorial power that is not

traceable to any congressional conferral of authority. And that, to

repeat, is what matters: If an entity’s capacity to make and enforce

criminal law ultimately comes from another government, then the two

are not separate sovereigns for double jeopardy purposes.

Cite as: 579 U. S. ____ (2016) 13

Opinion of the Court

prosecutorial power, Wheeler, 435 U. S., at 320—we once

again discover the U. S. Congress.

Recall here the events of the mid-20th century—when

Puerto Rico, just as petitioner contends, underwent a

profound change in its political system. See Brief for

Petitioner 1–2 (“[T]he people of Puerto Rico[ ] engaged in

an exercise of popular sovereignty . . . by adopting their

own Constitution establishing their own government to

enact their own laws”); supra, at 3–4. At that time, Con­

gress enacted Public Law 600 to authorize Puerto Rico’s

adoption of a constitution, designed to replace the federal

statute that then structured the island’s governance. The

people of Puerto Rico capitalized on that opportunity,

calling a constitutional convention and overwhelmingly

approving the charter it drafted. Once Congress approved

that proposal—subject to several important conditions

accepted by the convention—the Commonwealth, a new

political entity, came into being.

Those constitutional developments were of great signifi­

cance—and, indeed, made Puerto Rico “sovereign” in one

commonly understood sense of that term. As this Court

has recognized, Congress in 1952 “relinquished its control

over [the Commonwealth’s] local affairs[,] grant[ing]

Puerto Rico a measure of autonomy comparable to that

possessed by the States.” Examining Bd. of Engineers,

Architects and Surveyors v. Flores de Otero, 426 U. S. 572,

597 (1976); see id., at 594 (“[T]he purpose of Congress in

the 1950 and 1952 legislation was to accord to Puerto Rico

the degree of autonomy and independence normally associ­

ated with States of the Union”); Rodriguez v. Popular Demo-

cratic Party, 457 U. S. 1, 8 (1982) (“Puerto Rico, like a

state, is an autonomous political entity, sovereign over

matters not ruled by the [Federal] Constitution” (internal

quotation marks omitted)). That newfound authority,

including over local criminal laws, brought mutual benefit

to the Puerto Rican people and the entire United States.

14 PUERTO RICO v. SANCHEZ VALLE

Opinion of the Court

See Brief for United States as Amicus Curiae 3. And if our

double jeopardy decisions hinged on measuring an entity’s

self-governance, the emergence of the Commonwealth

would have resulted as well in the capacity to bring the

kind of successive prosecutions attempted here.

But as already explained, the dual-sovereignty test we

have adopted focuses on a different question: not on the

fact of self-rule, but on where it came from. See supra, at

7–8. We do not care, for example, that the States pres­

ently exercise autonomous control over criminal law and

other local affairs; instead, we treat them as separate

sovereigns because they possessed such control as an

original matter, rather than deriving it from the Federal

Government. See supra, at 8–9. And in identifying a

prosecuting entity’s wellspring of authority, we have

insisted on going all the way back—beyond the immediate,

or even an intermediate, locus of power to what we have

termed the “ultimate source.” Wheeler, 435 U. S., at 320.

That is why we have emphasized the “inherent,” “prime­

val,” and “pre-existing” capacities of the tribes and

States—the power they enjoyed prior to the Union’s for­

mation. Id., at 322–323, 328; Heath, 474 U. S., at 90;

Santa Clara Pueblo, 436 U. S., at 56; see supra, at 8–10.

And it is why cities fail our test even when they enact and

enforce their own criminal laws under their own, popu­

larly ratified charters: Because a State must initially

authorize any such charter, the State is the furthest-back

source of prosecutorial power. See Waller, 397 U. S., at

391–394; supra, at 10.

On this settled approach, Puerto Rico cannot benefit

from our dual-sovereignty doctrine. For starters, no one

argues that when the United States gained possession of

Puerto Rico, its people possessed independent prosecuto­

rial power, in the way that the States or tribes did upon

becoming part of this country. Puerto Rico was until then

a colony “under Spanish sovereignty.” Treaty of Paris,

Cite as: 579 U. S. ____ (2016) 15

Opinion of the Court

Art. 2, 30 Stat. 1755. And local prosecutors in the ensuing

decades, as petitioner itself acknowledges, exercised only

such power as was “delegated by Congress” through fed­

eral statutes. Brief for Petitioner 28; see Shell Co., 302

U. S., at 264–265; supra, at 10–11. Their authority de­

rived from, rather than pre-existed association with, the

Federal Government.

And contrary to petitioner’s claim, Puerto Rico’s trans-

formative constitutional moment does not lead to a differ­

ent conclusion. True enough, that the Commonwealth’s

power to enact and enforce criminal law now proceeds, just

as petitioner says, from the Puerto Rico Constitution as

“ordain[ed] and establish[ed]” by “the people.” P. R.

Const., Preamble; see Brief for Petitioner 28–30. But that

makes the Puerto Rican populace only the most immediate

source of such authority—and that is not what our dual-

sovereignty decisions make relevant. Back of the Puerto

Rican people and their Constitution, the “ultimate” source

of prosecutorial power remains the U. S. Congress, just as

back of a city’s charter lies a state government. Wheeler,

435 U. S., at 320. Congress, in Public Law 600, authorized

Puerto Rico’s constitution-making process in the first

instance; the people of a territory could not legally have

initiated that process on their own. See, e.g., Simms v.

Simms, 175 U. S. 162, 168 (1899). And Congress, in later

legislation, both amended the draft charter and gave it the

indispensable stamp of approval; popular ratification,

however meaningful, could not have turned the conven­

tion’s handiwork into law.6 Put simply, Congress con­

——————

6 Petitioner’s own statements are telling as to the role Congress nec­

essarily played in this constitutional process. See, e.g., Reply Brief 1–2

(“Pursuant to Congress’ invitation, and with Congress’ consent, the

people of Puerto Rico engaged in an exercise of popular sovereignty”);

id., at 7 (“The Commonwealth’s legal cornerstone is Public Law 600”);

Tr. of Oral Arg. 19 (describing the adoption of the Puerto Rico Constitu­

tion as “pursuant to the invitation of Congress and with the blessing of

16 PUERTO RICO v. SANCHEZ VALLE

Opinion of the Court

ferred the authority to create the Puerto Rico Constitu­

tion, which in turn confers the authority to bring criminal

charges. That makes Congress the original source of

power for Puerto Rico’s prosecutors—as it is for the Fed­

eral Government’s. The island’s Constitution, significant

though it is, does not break the chain.

Petitioner urges, in support of its different view, that

Congress itself recognized the new Constitution as “a

democratic manifestation of the [people’s] will,” Brief for

Petitioner 2—but far from disputing that point, we readily

acknowledge it to be so. As petitioner notes, Public Law

600 affirmed the “principle of government by consent” and

offered the Puerto Rican public a “compact,” under which

they could “organize a government pursuant to a constitu­

tion of their own adoption.” §1, 64 Stat. 319; see Brief for

Petitioner 2, 29; supra, at 3. And the Constitution that

Congress approved, as petitioner again underscores, de­

clares that “[w]e, the people” of Puerto Rico, “create” the

Commonwealth—a new political entity, “republican in

form,” in which the people’s will is “sovereign[ ]” over the

government. P. R. Const., Preamble and Art. I, §§1–2; see

Brief for Petitioner 2, 29–30; supra, at 4. With that

consented-to language, Congress “allow[ed] the people of

Puerto Rico,” in petitioner’s words, to begin a new chapter

of democratic self-governance. Reply Brief 20.

All that separates our view from petitioner’s is what

that congressional recognition means for Puerto Rico’s

ability to bring successive prosecutions. We agree that

Congress has broad latitude to develop innovative ap­

proaches to territorial governance, see U. S. Const., Art.

IV, §3, cl. 2; that Congress may thus enable a territory’s

people to make large-scale choices about their own politi­

cal institutions; and that Congress did exactly that in

enacting Public Law 600 and approving the Puerto Rico

——————

Congress”).

Cite as: 579 U. S. ____ (2016) 17

Opinion of the Court

Constitution—prime examples of what Felix Frankfurter

once termed “inventive statesmanship” respecting the

island. Memorandum for the Secretary of War, in Hear­

ings on S. 4604 before the Senate Committee on Pacific

Islands and Porto Rico, 63d Cong., 2d Sess., 22 (1914); see

Reply Brief 18–20. But one power Congress does not have,

just in the nature of things: It has no capacity, no magic

wand or airbrush, to erase or otherwise rewrite its own

foundational role in conferring political authority. Or

otherwise said, the delegator cannot make itself any less

so—no matter how much authority it opts to hand over.

And our dual-sovereignty test makes this historical fact

dispositive: If an entity’s authority to enact and enforce

criminal law ultimately comes from Congress, then it

cannot follow a federal prosecution with its own. That is

true of Puerto Rico, because Congress authorized and

approved its Constitution, from which prosecutorial power

now flows. So the Double Jeopardy Clause bars both

Puerto Rico and the United States from prosecuting a

single person for the same conduct under equivalent crim­

inal laws.

III

Puerto Rico boasts “a relationship to the United States

that has no parallel in our history.” Examining Bd., 426

U. S., at 596. And since the events of the early 1950’s, an

integral aspect of that association has been the Common­

wealth’s wide-ranging self-rule, exercised under its own

Constitution. As a result of that charter, Puerto Rico

today can avail itself of a wide variety of futures. But for

purposes of the Double Jeopardy Clause, the future is not

what matters—and there is no getting away from the past.

Because the ultimate source of Puerto Rico’s prosecutorial

power is the Federal Government—because when we trace

that authority all the way back, we arrive at the doorstep

of the U. S. Capitol—the Commonwealth and the United

18 PUERTO RICO v. SANCHEZ VALLE

Opinion of the Court

States are not separate sovereigns. That means the two

governments cannot “twice put” respondents Sánchez

Valle and Gómez Vázquez “in jeopardy” for the “same

offence.” U. S. Const., Amdt. 5. We accordingly affirm the

judgment of the Supreme Court of Puerto Rico.

It is so ordered.

Cite as: 579 U. S. ____ (2016) 1

GINSBURG, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–108

_________________

COMMONWEALTH OF PUERTO RICO, PETITIONER v.

LUIS M. SANCHEZ VALLE, ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

PUERTO RICO

[June 9, 2016]

JUSTICE GINSBURG, with whom JUSTICE THOMAS joins,

concurring.

I join in full the Court’s opinion, which cogently applies

long prevailing doctrine. I write only to flag a larger

question that bears fresh examination in an appropriate

case. The double jeopardy proscription is intended to

shield individuals from the harassment of multiple prose-

cutions for the same misconduct. Green v. United States,

355 U. S. 184, 187 (1957). Current “separate sovereigns”

doctrine hardly serves that objective. States and Nation

are “kindred systems,” yet “parts of ONE WHOLE.” The

Federalist No. 82, p. 245 (J. Hopkins ed., 2d ed. 1802)

(reprint 2008). Within that whole is it not “an affront to

human dignity,” Abbate v. United States, 359 U. S. 187,

203 (1959) (Black, J., dissenting), “inconsistent with the

spirit of [our] Bill of Rights,” Developments in the Law—

Criminal Conspiracy, 72 Harv. L. Rev. 920, 968 (1959), to

try or punish a person twice for the same offense? Several

jurists and commentators have suggested that the ques-

tion should be answered with a resounding yes: Ordinar-

ily, a final judgment in a criminal case, just as a final

judgment in a civil case, should preclude renewal of the

fray anyplace in the Nation. See Bartkus v. Illinois, 359

U. S. 121, 150 (1959) (Black, J., dissenting); United States

v. All Assets of G. P. S. Automotive Corp., 66 F. 3d 483

2 PUERTO RICO v. SANCHEZ VALLE

GINSBURG, J., concurring

(CA2 1995) (Calabresi, J.); Franck, An International Law-

yer Looks at the Bartkus Rule, 34 N. Y. U. L. Rev. 1096

(1959); Grant, Successive Prosecutions by State and Na-

tion: Common Law and British Empire Comparisons, 4

UCLA L. Rev. 1 (1956); Grant, The Lanza Rule of Succes-

sive Prosecutions, 32 Colum. L. Rev. 1309 (1932). See also

6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal

Procedure §25.5(a), p. 851 (4th ed. 2015) (“Criticism

of Abbate[’s separate sovereign exception] intensified

after the Supreme Court held that the Double Jeopardy

Clause of the Fifth Amendment was also applicable to the

states . . . .” (citing, inter alia, Braun, Praying to False

Sovereigns: The Rule Permitting Successive Prosecutions

in the Age of Cooperative Federalism, 20 Am. J. Crim. L. 1

(1992))). The matter warrants attention in a future case

in which a defendant faces successive prosecutions by

parts of the whole USA.

Cite as: 579 U. S. ____ (2016) 1

Opinion of THOMAS, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–108

_________________

COMMONWEALTH OF PUERTO RICO, PETITIONER v.

LUIS M. SANCHEZ VALLE, ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

PUERTO RICO

[June 9, 2016]

JUSTICE THOMAS, concurring in part and concurring in

the judgment.

The Court today concludes that the Commonwealth of

Puerto Rico and the United States are not separate sover-

eigns because the Federal Government is the ultimate

source of Puerto Rico’s authority to prosecute crimes.

Ante, at 16. I agree with that holding, which hews to the

Court’s precedents concerning the Double Jeopardy Clause

and U. S. Territories. But I continue to have concerns

about our precedents regarding Indian law, see United

States v. Lara, 541 U. S. 193, 214–226 (2004) (opinion

concurring in judgment), and I cannot join the portions of

the opinion concerning the application of the Double Jeop-

ardy Clause to successive prosecutions involving Indian

tribes. Aside from this caveat, I join the Court’s opinion.

Cite as: 579 U. S. ____ (2016) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–108

_________________

COMMONWEALTH OF PUERTO RICO, PETITIONER v.

LUIS M. SANCHEZ VALLE, ET AL.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

PUERTO RICO

[June 9, 2016]

JUSTICE BREYER, with whom JUSTICE SOTOMAYOR joins,

dissenting.

I agree with the Court that this case poses a special, not

a general, question about Puerto Rico’s sovereignty. It

asks whether “the prosecutorial powers belonging to Puerto

Rico and the Federal Government derive from wholly

independent sources.” Ante, at 12. I do not agree, how-

ever, with the majority’s answer to that question. I do not

believe that “if we go back [through history] as far as our

doctrine demands” (i.e., “all the way back” to the “furthest­

back source of prosecutorial power”), we will “discover”

that Puerto Rico and the Federal Government share the

same source of power, namely, “the U. S. Congress.” Ante,

at 12–13, 14. My reasons for disagreeing with the major­

ity are in part conceptual and in part historical.

I

Conceptually speaking, the Court does not mean liter-

ally that to find the “source” of an entity’s criminal law, we

must seek the “furthest-back source of . . . power.” Ante, at

14 (emphasis added). We do not trace Puerto Rico’s source

of power back to Spain or to Rome or to Justinian, nor do

we trace the Federal Government’s source of power back to

the English Parliament or to William the Conqueror or to

King Arthur. Rather the Court’s statement means that we

2 PUERTO RICO v. SANCHEZ VALLE

BREYER, J., dissenting

should trace the source of power back to a time when a

previously nonexistent entity, or a previously dependent

entity, became independent—at least, sufficiently inde­

pendent to be considered “sovereign” for purposes of the

Double Jeopardy Clause.

As so viewed, this approach explains the Court’s deci­

sions fairly well. The Federal Government became an

independent entity when the Constitution first took effect.

That document gave to the Federal Government the au­

thority to enact criminal laws. And the Congress that the

document created is consequently the source of those laws.

The original 13 States, once dependents of Britain, became

independent entities perhaps at the time of the Declara­

tion of Independence, perhaps at the signing of the Treaty

of Paris, perhaps with the creation of the Articles of Con­

federation. (I need not be precise.) See G. Wood, Creation

of the American Republic 1776–1787, p. 354 (1969) (“The

problem of sovereignty was not solved by the Declaration

of Independence. It continued to be the most important

theoretical question of politics throughout the following

decade”). And an independent colony’s legislation-creating

system is consequently the source of those original State’s

criminal laws.

But the “source” question becomes more difficult with

respect to other entities because Congress had an active

role to play with respect to their creation (and thus con­

gressional activity appears to be highly relevant to the

double jeopardy question). Consider the Philippines. No

one could doubt the Philippines’ current possession of

sovereign authority to enact criminal laws. Yet if we

trace that power back through history, we must find the

“furthest-back” source of the islands’ lawmaking authority,

not in any longstanding independent Philippine institu­

tions (for until 1946 the Philippines was dependent, not

independent), but in a decision by Congress and the Presi­

dent (as well as by the Philippines) to change the Philip­

Cite as: 579 U. S. ____ (2016) 3

BREYER, J., dissenting

pines’ status to one of independence. In 1934 Congress

authorized the President to “withdraw and surrender all

right of . . . sovereignty” over the Philippines. 48 Stat.

463, codified at 22 U. S. C. §1394. That authorization

culminated in the Treaty of Manila, signed in 1946 and

approved by Congress that same year, which formally

recognized the Philippines as an independent, self-

governing nation-state. See 61 Stat. 1174. In any obvious

sense of the term, then, the “source” of the Philippines’

independence (and its ability to enact and enforce its own

criminal laws) was the U. S. Congress.

The same is true for most of the States. In the usual

course, a U. S. Territory becomes a State within our Union

at the invitation of Congress. In fact, the parallels be­

tween admission of new States and the creation of the

Commonwealth in this case are significant. Congress

passes a law allowing “the inhabitants of the territory . . .

to form for themselves a constitution and state govern­

ment, and to assume such name as they shall deem proper.”

Act of Apr. 16, 1818, ch. 67, 3 Stat. 428–429 (Illinois);

see also Act of June 20, 1910, ch. 310, 36 Stat. 557 (New

Mexico) (“[T]he qualified electors of the Territory . . . are

hereby authorized to vote for and choose delegates to form

a constitutional convention for said Territory for the pur­

pose of framing a constitution for the proposed State of

New Mexico”). And after the Territory develops and pro­

poses a constitution, Congress and the President review

and approve it before allowing the Territory to become a

full-fledged State. See, e.g., Res. 1, 3 Stat. 536 (Illinois);

Pub. Res. 8, 37 Stat. 39 (New Mexico); Presidential Proc­

lamation No. 62, 37 Stat. 1723 (“I WILLIAM HOWARD

TAFT, . . . declare and proclaim the fact that the funda­

mental conditions imposed by Congress on the State of

New Mexico to entitle that State to admission have been

ratified and accepted”). The Federal Government thus is

in an important sense the “source” of these States’ legisla­

4 PUERTO RICO v. SANCHEZ VALLE

BREYER, J., dissenting

tive powers.

One might argue, as this Court has argued, that the

source of new States’ sovereign authority to enact criminal

laws lies in the Constitution’s equal-footing doctrine—the

doctrine under which the Constitution treats new States

the same as it does the original 13. See ante, at 9, n. 4. It

is difficult, however, to characterize a constitutional in­

sistence upon equality of the States as (in any here rele­

vant sense) the “source” of those States’ independent

legislative powers. For one thing, the equal-footing doc­

trine is a requirement imposed by the U. S. Constitution.

See Coyle v. Smith, 221 U. S. 559, 566–567 (1911). For

that reason, the Constitution is ultimately the source of

even these new States’ equal powers (just as it is the

source of Congress’ powers). This is not to suggest that we

are not a “ ‘union of States [alike] in power, dignity and

authority.’ ” Ante, at 9, n. 4 (quoting Coyle, supra, at 567).

Of course I recognize that we are. It is merely to ask:

without the Constitution (i.e., a federal “source”), what

claim would new States have to a lawmaking power equal

to that of their “earliest counterparts”? Ante, at 9, n. 4.

For another thing, the equal-footing doctrine means

that, going forward, new States must enjoy the same

rights and obligations as the original States—they are, for

example, equally restricted by the First Amendment and

equally “competent to exert that residuum of sovereignty

not delegated to the United States by the Constitution

itself.” Coyle, supra, at 567. But this current and future

equality does not destroy the fact that there is a federal

“source” from which those rights and obligations spring:

the Congress which agreed to admit those new States into

the Union in accordance with the Constitution’s terms.

See, e.g., 37 Stat. 39 (“The Territor[y] of New Mexico [is]

hereby admitted into the Union upon an equal footing

with the original States”).

In respect to the Indian tribes, too, congressional action

Cite as: 579 U. S. ____ (2016) 5

BREYER, J., dissenting

is relevant to the double jeopardy analysis. This Court

has explained that the tribes possess an independent

authority to enact criminal laws by tracing the source of

power back to a time of “ ‘primeval’ ” tribal existence when

“ ‘the tribes were self-governing sovereign political com­

munities.’ ” Ante, at 9–10 (quoting United States v.

Wheeler, 435 U. S. 313, 322–323 (1978)). But as the Court

today recognizes, this prelapsarian independence must be

read in light of congressional action—or, as it were, inac­

tion. That is because—whatever a tribe’s history—

Congress maintains “plenary authority to limit, modify or

eliminate the [tribes’] powers of local self-government,”

Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978),

and thus the tribes remain sovereign for purposes of the

Double Jeopardy Clause only “until” Congress chooses to

withdraw that power, ante, at 10. In this sense, Congress’

pattern of inaction (i.e., its choice to refrain from with­

drawing dual sovereignty) amounts to an implicit decision

to grant such sovereignty to the tribes. Is not Congress

then, in this way, the “source” of the Indian tribes’ criminal-

enforcement power?

These examples illustrate the complexity of the question

before us. I do not believe, as the majority seems to be­

lieve, that the double jeopardy question can be answered

simply by tracing Puerto Rico’s current legislative powers

back to Congress’ enactment of Public Law 600 and calling

the Congress that enacted that law the “source” of the

island’s criminal-enforcement authority. That is be­

cause—as with the Philippines, new States, and the In-

dian tribes—congressional activity and other historic cir­

cumstances can combine to establish a new source of

power. We therefore must consider Public Law 600 in the

broader context of Puerto Rico’s history. Only through

that lens can we decide whether the Commonwealth,

between the years 1950 and 1952, gained sufficient sover­

eign authority to become the “source” of power behind its

6 PUERTO RICO v. SANCHEZ VALLE

BREYER, J., dissenting

own criminal laws.

II

The Treaty of Paris, signed with Spain in 1898, said

that “[t]he civil rights and political status” of Puerto Rico’s

“inhabitants . . . shall be determined by the Congress.”

Art. 9, 30 Stat. 1759. In my view, Congress, in enacting

the Puerto Rican Federal Relations Act (i.e., Public Law

600), determined that the “political status” of Puerto Rico

would for double jeopardy purposes subsequently encom­

pass the sovereign authority to enact and enforce—

pursuant to its own powers—its own criminal laws. Sev­

eral considerations support this conclusion.

First, the timing of Public Law 600’s enactment suggests

that Congress intended it to work a significant change in

the nature of Puerto Rico’s political status. Prior to 1950

Puerto Rico was initially subject to the Foraker Act, which

provided the Federal Government with virtually complete

control of the island’s affairs. In 1917 Puerto Rico became

subject to the Jones Act, which provided for United States

citizenship and permitted Puerto Ricans to elect local

legislators but required submission of local laws to Con­

gress for approval. In 1945 the United States, when sign­

ing the United Nations Charter, promised change. It told

the world that it would “develop self-government” in its

Territories. Art. 73(b), 59 Stat. 1048, June 26, 1945, T. S.

No. 993 (U. N. Charter). And contemporary observers

referred to Public Law 600 as taking a significant step in

the direction of change by granting Puerto Rico a special

status carrying with it considerable autonomy. See, e.g.,

Magruder, The Commonwealth Status of Puerto Rico, 15

U. Pitt. L. Rev. 1, 14–16 (1953); see also L. Kalman, Abe

Fortas: A Biography 170–171 (1990) (“[After the 1950

‘compact,’] Puerto Rico was self-ruling, according to [For­

tas], although the federal government retained the same

power it would have over states in a union”).

Cite as: 579 U. S. ____ (2016) 7

BREYER, J., dissenting

Second, Public Law 600 uses language that says or

implies a significant shift in the legitimacy-conferring

source of many local laws. The Act points out that the

United States “has progressively recognized the right of

self-government of the people of Puerto Rico.” 64 Stat.

319. It “[f]ully recogniz[es] the principle of government by

consent.” 48 U. S. C. §731b. It describes itself as being “in

the nature of a compact so that the people of Puerto Rico

may organize a government pursuant to a constitution of

their own adoption.” Ibid. It specifies that the island’s

new constitution must “provide a republican form of gov­

ernment,” §731c; and this Court has characterized that

form of government as including “the right of the people to

choose their own officers for governmental administration,

and pass their own laws in virtue of the legislative power

reposed in representative bodies, whose legitimate acts

may be said to be those of the people themselves,” In re

Duncan, 139 U. S. 449, 461 (1891).

Third, Public Law 600 created a constitution-writing

process that led Puerto Rico to convene a constitutional

convention and to write a constitution that, in assuring

Puerto Rico independent authority to enact many local

laws, specifies that the legitimacy-conferring source of

much local lawmaking shall henceforth be the “people of

Puerto Rico.” The constitution begins by stating:

“We, the people of Puerto Rico, in order to organize

ourselves politically on a fully democratic basis, to

promote the general welfare, and to secure for our­

selves and our posterity the complete enjoyment of

human rights, placing our trust in Almighty God,

do ordain and establish this Constitution for the

commonwealth . . . .

. . . . .

“We understand that the democratic system of gov­

ernment is one in which the will of the people is the

8 PUERTO RICO v. SANCHEZ VALLE

BREYER, J., dissenting

source of public power.” P. R. Const., Preamble

(1952).

The constitution adds that the Commonwealth’s “political

power emanates from the people and shall be exercised in

accordance with their will,” Art. I, §1; that the “govern­

ment of the Commonwealth of Puerto Rico shall be repub­

lican in form and its legislative, judicial and executive

branches . . . shall be equally subordinate to the sovereignty

of the people of Puerto Rico,” Art. I, §2; and that “[a]ll

criminal actions in the courts of the Commonwealth shall

be conducted in the name and by the authority of ‘The

People of Puerto Rico,’ ” Art. VI, §18.

At the same time, the constitutional convention adopted

a resolution stating that Puerto Rico should be known

officially as “ ‘The Commonwealth of Puerto Rico’ ” in

English and “ ‘El Estado Libre Asociado de Puerto Rico’ ” in

Spanish. Resolution 22, in Documents on the Constitu­

tional Relationship of Puerto Rico and the United States

192 (M. Ramirez Lavandero ed., 3d ed. 1988). The resolu­

tion explained that these names signified “a politically

organized community . . . in which political power resides

ultimately in the people, hence a free state, but one which

is at the same time linked to a broader political system in

a federal or other type of association and therefore does

not have independent and separate existence.” Id., at 191.

Fourth, both Puerto Rico and the United States ratified

Puerto Rico’s Constitution. Puerto Rico did so initially

through a referendum held soon after the constitution was

written and then by a second referendum held after the

convention revised the constitution in minor ways (ways

that Congress insisted upon, but which are not relevant

here). See 66 Stat. 327; see also ante, at 3 (describing

these revisions). Congress did so too by enacting further

legislation that said that the “constitution of the Com­

monwealth of Puerto Rico . . . shall become effective when

Cite as: 579 U. S. ____ (2016) 9

BREYER, J., dissenting

the Constitutional Convention of Puerto Rico shall have

declared in a formal resolution its acceptance . . . of the

conditions of approval herein contained.” 66 Stat. 327–

328. And, as I have just said, the convention, having the

last word, made the minor amendments and Puerto Rico

ratified the constitution through a second referendum.

Fifth, all three branches of the Federal Government

subsequently recognized that Public Law 600, the Puerto

Rican Constitution, and related congressional actions

granted Puerto Rico considerable autonomy in local mat­

ters, sometimes akin to that of a State. See, e.g., S. Rep.

No. 1720, 82d Cong., 2d Sess., 6 (1952) (“As regards local

matters, the sphere of action and the methods of govern­

ment bear a resemblance to that of any State of the Un­

ion”). Each branch of the Federal Government subse­

quently took action consistent with that view.

As to the Executive Branch, President Truman wrote to

Congress that the Commonwealth’s constitution, when

enacted and ratified, “vest[s] in the people of Puerto Rico”

complete “authority and responsibility for local self-

government.” Public Papers of the Presidents, Apr. 22,

1952, p. 287 (1952–1953). Similarly, President Kennedy

in 1961 circulated throughout the Executive Branch a

memorandum that said:

“The Commonwealth structure, and its relationship

to the United States which is in the nature of a com­

pact, provide for self-government in respect of internal

affairs and administration, subject only to the appli­

cable provisions of the Federal Constitution, the Puerto

Rican Federal Relations Act [i.e., Public Law 600],

and the acts of Congress authorizing and approving

the constitution.

. . . . .

“All departments, agencies, and officials of the ex­

ecutive branch of the Government should faithfully

10 PUERTO RICO v. SANCHEZ VALLE

BREYER, J., dissenting

and carefully observe and respect this arrangement in

relation to all matters affecting the Commonwealth of

Puerto Rico.” 26 Fed. Reg. 6695.

Subsequent administrations made similar statements.

See Liebowitz, The Application of Federal Law to the

Commonwealth of Puerto Rico, 56 Geo. L. J. 219, 233, n.

60 (1967) (citing message from President Johnson).

The Department of State, acting for the President and

for the Nation, wrote a memorandum to the United Na­

tions explaining that the United States would no longer

submit special reports about the “economic, social, and

educational conditions” in Puerto Rico because Puerto Rico

was no longer a non-self-governing Territory. U. N. Char­

ter, Art. 73(e) (requiring periodic reports concerning such

Territories). Rather, the memorandum explained that

Puerto Rico had achieved “the full measure of self-

government.” Memorandum by the Government of the

United States of America Concerning the Cessation of

Transmission of Information Under Article 73(e) of the

Charter With Regard to the Commonwealth of Puerto

Rico, in A. Fernós-Isern, Original Intent in the Constitu­

tion of Puerto Rico 154 (2d ed. 2002). The memorandum

added that “Congress has agreed that Puerto Rico shall

have, under [its] Constitution, freedom from control or

interference by the Congress in respect to internal gov­

ernment and administration.” Id., at 153.

The United Nations accepted this view of the matter,

the General Assembly noting in a resolution that “the

people of the Commonwealth of Puerto Rico . . . have

achieved a new political status.” Resolution 748 VIII, in

id., at 142. The General Assembly added that “the people

of the Commonwealth of Puerto Rico have been invested

with attributes of political sovereignty which clearly iden­

tify the status of self-government attained by the Puerto

Rican people as that of an autonomous political entity.”

Cite as: 579 U. S. ____ (2016) 11

BREYER, J., dissenting

Ibid.; see also United Nations and Decolonization, Trust

and Non-Self-Governing Territories (1945–1999), online at

http://www.un.org/en/decolonization/nonselfgov.shtml (as

last visited June 3, 2016) (noting that Puerto Rico under­

went a “Change in Status” in 1952, “after which infor­

mation was no longer submitted to the United Nations”

concerning this former “[t]rusteeship”).

The Department of Justice, too, we add, until this case,

argued that Puerto Rico is, for Double Jeopardy Clause

purposes, an independently sovereign source of its crimi­

nal laws. See, e.g., United States v. Lopez Andino, 831

F. 2d 1164, 1168 (CA1 1987) (accepting the Government’s

position that “Puerto Rico is to be treated as a state for

purposes of the double jeopardy clause”), cert. denied, 486

U. S. 1034 (1988).

As to the Judicial Branch, this Court has held that

Puerto Rico’s laws are “state statutes” within the terms of

the Three-Judge Court Act. See Calero-Toledo v. Pearson

Yacht Leasing Co., 416 U. S. 663 (1974). In doing so, we

wrote that the 1952 events had led to “significant changes

in Puerto Rico’s governmental structure”; that the Com­

monwealth had been “ ‘organized as a body politic by the

people of Puerto Rico under their own constitution’ ”; and

that these differences distinguish Puerto Rico’s laws from

those of other Territories, which are “ ‘subject to congres­

sional regulation.’ ” Id., at 672–673; see also, e.g., Examin-

ing Bd. of Engineers, Architects and Surveyors v. Flores de

Otero, 426 U. S. 572, 597 (1976) (Congress granted Puerto

Rico “a measure of autonomy comparable to that possessed

by the States”); Rodriguez v. Popular Democratic Party,

457 U. S. 1, 8 (1982) (“Puerto Rico, like a State, is an

autonomous political entity, sovereign over matters not

ruled by the [Federal] Constitution” (internal quotation

marks omitted)).

Finally, as to the Legislative Branch, to my knowledge

since 1950 Congress has never—I repeat, never—vetoed or

12 PUERTO RICO v. SANCHEZ VALLE

BREYER, J., dissenting

modified a local criminal law enacted in Puerto Rico.

Sixth, Puerto Rico’s Supreme Court has consistently

held, over a period of more than 50 years, that Puerto

Rico’s people (and not Congress) are the “source” of Puerto

Rico’s local criminal laws. See, e.g., Pueblo v. Castro

Garcia, 20 P. R. Offic. Trans. 775, 807–808 (1988) (“Puerto

Rico’s . . . criminal laws . . . emanate from a different

source than the federal laws”); R. C. A. Communications,

Inc. v. Government of the Capital, 91 P. R. R. 404, 415

(1964) (transl.) (Puerto Rico’s “governmental powers . . .

flow from itself and from its own authority” and are not

“merely delegated by Congress”); Ramirez de Ferrer v.

Mari Bras, 144 D. P. R. 141, ___, 1997 WL 870836, *4

(Westlaw transl.) (Puerto Rico’s “governmental powers . . .

emanate from the will of the people of Puerto Rico”); see

also Pueblo v. Figueroa, 77 P. R. R. 175, 183 (1954) (find­

ing that it was “impossible to believe that” the Puerto

Rican Constitution is “in legal effect” simply “a Federal

law”); cf. Figueroa v. Puerto Rico, 232 F. 2d 615, 620 (CA1

1956) (“[T]he constitution of the Commonwealth is not just

another Organic Act of Congress” “though congressional

approval was necessary to launch it forth”).

Seventh, insofar as Public Law 600 (and related events)

grants Puerto Rico local legislative autonomy, it is particu­

larly likely to have done so in respect to local criminal law.

That is because Puerto Rico’s legal system arises out of,

and reflects, not traditional British common law (which

underlies the criminal law in 49 of our 50 States), but a

tradition stemming from European civil codes and Roman

law. In 1979 Chief Justice Trías Monge wrote for a unan­

imous Puerto Rico Supreme Court that the Common­

wealth’s laws were to be “governed . . . by the civil law

system,” with roots in the Spanish legal tradition, not by

the “common-law principles” inherent in “ ‘American doc­

trines and theories’ ” of the law. Valle v. American Int’l

Ins. Co., 8 P. R. Offic. Trans. 735, 736–738 (1979). Con­

Cite as: 579 U. S. ____ (2016) 13

BREYER, J., dissenting

siderations of knowledge, custom, habit, and convention

argue with special force for autonomy in the area of crimi­

nal law. Cf. Diaz v. Gonzalez, 261 U. S. 102, 105–106

(1923) (Holmes, J., for the Court) (cautioning that federal

courts should not apply “common law conceptions” in

Puerto Rico, because the island “inherit[ed]” and was

“brought up in a different system from that which prevails

here”).

I would add that the practices, actions, statements, and

attitudes just described are highly relevant here, for this

Court has long made clear that, when we face difficult

questions of the Constitution’s structural requirements,

longstanding customs and practices can make a difference.

See NLRB v. Noel Canning, 573 U. S. ___, ___–___ (2014)

(slip op., at 7–8) (“[I]t is equally true that the longstanding

practice of the government can inform our determination

of what the law is” (citation and internal quotation marks

omitted)); see also, e.g., Mistretta v. United States, 488

U. S. 361, 401 (1989); Dames & Moore v. Regan, 453 U. S.

654, 686 (1981); Youngstown Sheet & Tube Co. v. Sawyer,

343 U. S. 579, 610–611 (1952) (Frankfurter, J., concur­

ring); The Pocket Veto Case, 279 U. S. 655, 689–690 (1929);

Ex parte Grossman, 267 U. S. 87, 118–119 (1925); United

States v. Midwest Oil Co., 236 U. S. 459, 472–474 (1915);

McPherson v. Blacker, 146 U. S. 1, 27 (1892); McCulloch v.

Maryland, 4 Wheat. 316, 401 (1819); Stuart v. Laird, 1

Cranch 299 (1803). Here, longstanding customs, actions,

and attitudes, both in Puerto Rico and on the mainland,

uniformly favor Puerto Rico’s position (i.e., that it is sover­

eign—and has been since 1952—for purposes of the Dou­

ble Jeopardy Clause).

This history of statutes, language, organic acts, tradi­

tions, statements, and other actions, taken by all three

branches of the Federal Government and by Puerto Rico,

convinces me that the United States has entered into a

compact one of the terms of which is that the “source” of

14 PUERTO RICO v. SANCHEZ VALLE

BREYER, J., dissenting

Puerto Rico’s criminal law ceased to be the U. S. Congress

and became Puerto Rico itself, its people, and its constitu­

tion. The evidence of that grant of authority is far stronger

than the evidence of congressional silence that led this

Court to conclude that Indian tribes maintained a similar

sovereign authority. Indeed, it is difficult to see how we

can conclude that the tribes do possess this authority but

Puerto Rico does not. Regardless, for the reasons given, I

would hold for Double Jeopardy Clause purposes that the

criminal law of Puerto Rico and the criminal law of the

Federal Government do not find their legitimacy-

conferring origin in the same “source.”

I respectfully dissent.