Petitioners Reply Brief — United States v. Wheeler

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In the Supreme Court uf the United States

OcroBEeR TERM, 1977

7 c No. 78.1

UNITED STATES OF AMERICA, PETITIONER

ANTHONY ROBERT WHEELER

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

Wann H. McCrazzg, Ja.

Solicitor General,

BENJAMIN R. CIVILETT!,

Assistant Attorney General,

STEPHEN R. BARNETT,

4 — , * 295

1 +¢ : N * . A

0 1 8 '

oy 28 1 2 seal be ey Fy ly Ao ae

INDEX

Page

Opinion below 1

Jurisdietion 1

Question presented 2

Constitutional and statutory provisions in-

volved 2

Statement 3

Summary of Argument 6

Argument 12

The Double Jeopardy Clause does not pro-

hibit prosecution of an Indian defendant in

a federal court because of his prior convic-

tion in an Indian tribal court of a lesser in-

cluded offense arising from the same acts 12

A. The Double Jeopardy Clause does not

bar successive prosecutions by separate

sovereign governments for the same of-

fense | . 12

B. The dual sovereignty principle applies

to permit successive prosecutions by an

Indian tribe and the federal govern-

ment 17

1. The Indian tribes possess attributes

of sovereignty from which their au-

thority is derived — of

the federal government é 17

Te ee ee ee

| Cases—Continued Page

Argument—Continued Page Examining Board of Engineers v. Flores

2. Failure to apply the dual sovereignty de Otero, 426 U.S. 572 5 31

principle to successive prosecutions Fisher v. District Court, 424 U.S. 382 20

by tribal and federal courts would Fox v. Ohio, 5 How. 410 — 13

lead to “undesirable consequences” Grafton v. United States, 206 US. 333 7, 16, 30

of the same kind that the principle, Green v. United States, 355 U.S. 184 48

as applied in the federal-state con- Iron Crow v. Oglala Sioux Tribe of Pine

text, was designed to avoid 35 Ridge Reservation, 231 F.2d 89 29

Jeffers v. United States, No. 75-1805,

C. Even if tribal courts are viewed as arms

of the federal sovereign, the Double

Jeopardy Clause does not bar prosecu-

tion for a Major Crimes Act felony in

a federal district court after conviction

of a lesser included offense under tribal

law in a tribal court 43

Conclusion 52

CITATIONS

Cases:

Abbate v. United States, 359 U.S. 187 5, 6, 7,

13, 14, 15, 16, 36, 39, 43

Ashe v. Swenson, 397 U.S. 436 45, 49

Barta v. Oglala Sioux Tribe of Pine Ridge

Reservation, 259 F.2d 553

Bartkus v. Illinois, 359 U.S. 121 6, 13, 14, 16

Brown v. Ohio, No. 75-6938, decided June

16, 1977 6, 11, 13, 36, 43, 44, 45, 48, 49

Carney v. Chapman, 247 U.S. 102 20

Cherokee Intermarriage Cases, 203 U.S. *

Colli flower v. Garland, 342 F.2d 369 24, 29

Crow Dog, Ex Parte, 109 U.S. 556 22

Diaz v. United States, 223 U.S. 442 44, 46, 51

decided June 16, 1977 11, 43, 44, 45, 48, 51

Jones v. Meehan, 175 U.S. 1 . 20

Keeble v. United States, 412 U.S. 205 22, 23,

32, 33, 38, 48, 50, 51

Lone Wolf v. Hitchcock, 187 U.S. 5598 19

McClanahan v. Arizona State Tax Com-

mission, 411 U.S. 164 7 5, 19

Middendorf v. Henry, 425 U.S. 25 K 49

Moore v. Illinois, 14 How. 13 sl 6, 13

Morris v. Hitchcock, 194 U.S. 384 ' 20

Morton v. Mancari, 417 U.S. 585 25

Native American Church v. Navajo Tribal

Council, 272 F.2d 111 26

North Carolina v. Pearce, 395 U.S. 711. 12

Oliphant v. Schlie, 544 F.2d 1007, cer-

tiorari granted sub nom. Oliphant v. The

Suquamish Indian Tribe, No. 76-5729,

June 13, 1977 29

Oliver v. Udall, 306 F.2d 819, ‘certiorari

denied, 372 U.S. 908 amt 26

O'Neal v. Cheyenne River Sioux Tribe, 482

F.2d 110 41

Ortiz-Barraza v. United States, 512 F.2d

1176 29

Puerto Rico v. Shell Co., 302 U.S. 253. 16, 31

IV v

Cases Continued Page

Puyallup Tribe, Inc. v. Department of 2 —— Page

Game of Washington, No. 76-423, de- United States v. Winans, 198 U.S. 371 19

cided June 23, 1977 | 20 Waller v. Florida, 397 U.S. 387 7, 16, 30,

Reynolds v. Sims, 377 U.S. 533 | 16 $1, 44

Roff v. Burney, 168 U.S. 218 19 Williams v. Lee, 358 U.S. 217 20, 21, 26

Santa Clara Pueblo v. Martinez, No. 16- Williams v. United States, 327 U.S. 711 51

682, certiorari granted, May 16, 1977 20 Winton v. Amos, 255 US. 3738 19

Settler v. Lameer, 507 F.2d 231 29 Worcester v. Georgia, 6 Pet. 515 8, 17, 21

Stone v. United States, 506 F. 2d 561, cer-

tiorari denied, 420 U.S. 978 36 Constitution, statutes, and regulations:

Talton v. Mayes, 163 U.S. 376 9, 21, 2 — United States Constitution:

Tom v. Sutton, 533 F.2d 1101 29 Article I, Section 8, Clause 3 18

United States v. Antelope, 430 U.S. Fifth Amendment 2, 5, 12, 27, 28

641 _. 8, 18, 23, 33 Double Jeopardy Clause _ passim

United States v. DeCoteau, 516 F.2d 16 37 Bleventh Amendment

| 20

9 States v. DeMarrias, 441 F.2d 2 Fourteenth Amendment | 14

United States v. Feola, 420 U.S. 671 36 Act of March 3, 1885, 23 Stat. 362, 385 22

United States v. Kagama, 118 U.S. 375 19 23 Stat. 362, 38858 49

United States v. Keeble, 459 F.2d 757,

reversed, 412 U.S. 205 37 Act of July 3, 1950, 64 Stat. 319 31

Te a ee 29. 37 — 1910, 25 U.S.C. (Supp. V) 174

tates v. Lanza, 260 U.S. 377 6, 7, 9, 13, note 40

United States v. Lanza Na Indian Civil Rights Act of 1968, 82 Stat.

United States v. Mazurie, 419 U.S. 544 8, 18, 20 77, r 5 seq. * 2 —

ited States v. „241 U.S. 602 20, 21, 8.C. — 6S St

United States v. Quiver 23.38 Indian Crimes Act of May 29, 1976, Pub.

United States v. United States Fidelity & L. 94-297, 90 Stat. 588 4. 22

Guaranty Co., 309 U.S. 50ũn 20 Indian Reorganization Act of 1934

United States v. Walking Crow, C.A. 8, (Wheeler-Howard Act), 48 Stat. 987,

No. 77-1136, decided August 10, 1977, 25 U.S.C. 476, et seq. : 24, 25

petition for a writ of certiorari pending, Section 16,25 U.S.C. 458 228

No. 77-5539 29, 37

V vn

Constitution, statutes, and

regulations Continued page Miscellaneous Continued Page

Indian Trade and Intercourse Act of June

American Indian Policy Review Commis-

sion, Final Report (1977) 40, 41, 42

1972 Annual Report of the Judicial

30, 1834, Section 25, 4 Stat. 729, 733 22 — * 8 26

4 Stat. 729, 733. 49 L 3

ZLI 49 Burnett, An Historical Analysis of the

Ir on 21 1968 “Indian Civil Rights“ Act, 9 Har-

18 U.S.C, 111 „ 36 vard Journal on Legislation 557

ILT 33 (1972) 28

18 U.S.C. 1152 22, 33, 49, 50 Clinton, Criminal Jurisdiction over Indian

18 U.S.C, 1153 2, 4, 22, 33, 35, 49, 50 Lands: A Journey through a Jurisdic-

hs) & ae 8, 35, 50 tional Maze, 18 Ariz. L. Rev. 503

18 U.S.C, 3242 | 32 (1976) 23, 24, 25, 28, 34, 41

25 U.S.C. 478b 25 Clinton, Development of Criminal Juris-

Arizona Rev. Stat. Ann. ( 1956) : diction over Indian Lands: The His-

torical Perspective, 17 Ariz. L. Rev. 951

13-252 7 4 (1975) 99

—— — Cohen, Handbook of Federal Indian Law

„ (1942 ed.) 3, 17, 18, 20, 25

7 Navajo Tribal Code 101 (2972). 26 Davis, Court Reform in the Navajo Na-

17 Navajo Tribal Code (1972); tion, 43 J. Am. Jud. Soc’y 53 (1959) 26

Section 321 3 Department of Interior, Federal Indian

Section 351 3 Law a — er 21, 24

17 Navajo Tribal Code 1, historical notes es i ee

Arr. — — the Subcommittee on Constitutional

A r 11.1(d) -.... — 2 Rights of the Senate Committee on the

25 C. F. R. 11.1(d)-11.1(e) — 25 Judiciary, 87th Cong., Ist Sess. (Part

25 C. F. R. 11,8-11.4 , 25 Tribal

25 C.F.R. 11.38-11.87 NH 26 a ~ — Rights, 1 Awe

Miscellaneous : L. 311 (1969) 41

Note, The Indian Bill of Rights and the

Constitutional Status of Tribal Govern-

ments, 82 Harv. L. Rev. 1343 (1969) 28

„n

Miscellaneous Continued

Note, The Indian: The Forgotten Ameri-

can, 81 Harv. L. Rev. 1818 (1968)

Note, Twice in Jeopardy, 75 Yale L. J.

(1965)

Powers of Indian Tribes, 55 I.. 14

(1934)

8. Rep. No. 721, 90th Cong., Ist Sess.

(1967) | , 38, 48

S. Rep. No. 841, 90th Cong., Ist Sess.

(1967) . 28

Vollman, Criminal Jurisdiction in Indian

Country: Tribal Sovereignty and De-

fendants’ Rights in Conflict, 22 Univ.

of Kans. L. Rev. 387 (1974) 40

sal

Ju the Supreme Court of the United States

OcToBER TERM, 1977

No. 76-1629

UNITED STATES OF AMERICA, PETITIONER

ANTHONY ROBERT WHEELER

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

The opinion of the court of appeals (Pet. App. A)

is reported at 545 F.2d 1255.

JURISDICTION *

The judgment of the court of appeals (Pet. App. B)

was entered on December 2, 1976. A petition for re-

hearing with a suggestion for rehearing en banc was

denied on March 23, 1977 (Pet. App. C). On April 13,

1977, Mr. Justice Rehnquist extended the time for

filing a petition for a writ of certiorari to and includ-

(1)

ing May 20, 1977. The petition was filed on that date

and was granted on October 3, 1977 (A. 33). The

jurisdiction of this Court rests on 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the Double Jeopardy Clause of the Fifth

Amendment bars federal prosecution of an Indian

defendant for violation of the Major Crimes Act (18

U.S.C. 1153) because of his earlier conviction in

Indian tribal court of a lesser included offense arising

from the same acts.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Consti-

tution provides in pertinent part:

Nor shall any person be subject for the same

offense to be twice put in jeopardy of life or

limb * * *.

18 U.S.C. 1153 provides in pertinent part:

Any Indian who commits against the person or

property of another Indian or other person any

of the following offenses, namely, murder, man-

slaughter, rape, carnal knowledge of any female,

not his wife, who has not attained the age of

sixteen years, assault with intent to commit rape,

incest, assault with intent to kill, assault with a

ceny within the Indian country, shall subject

to the same laws and penalties as all other per-

sons committing any of the above offenses, within

the exclusive jurisdiction of the United States.

18 U.S.C. 2032 provides:

Whoever, within the special maritime and ter-

ritorial jurisdiction of the United States, carnally

knows any female, not his wife, who has not

attained the age of sixteen years, shall, for a first

offense, be imprisoned not more than fifteen

years, and for a subsequent offense, be impris-

oned not more than thirty years.

Title 17, Section 321, of the Navajo Tribal Code

(1972) provides:

Any Indian who shall willfully contribute to

the delinquency of any minor shall be deemed

guilty of an offense and, upon conviction thereof,

shall be sentenced to labor for a period not to

exceed 6 months.

STATEMENT

On October 16, 1974, an incident involving a young

Indian girl occurred on the Navajo Indian Reserva-

tion in Many Farms, Arizona. Respondent, a Navajo

Indian, was found intoxicated and taken into custody

by an Indian policeman at the scene of the incident

(A. 14-18); his clothing was disarranged and there

was a blood stain on his face (A. 18). Two days later,

he pleaded guilty in the Navajo Tribal Court to

charges ( willfully contributing to the delinquency

of a minor and disorderly conduct, in violation of

Title 17, Sections 351 and 321, of the Navajo Tribal

Code (1972). The Navajo Nation v. Anthony Wheeler,

Case Nos. CL-321-3245-74 and CL-351-3238-74 (A. 9-

10). Respondent was sentenced on the charge of

contributing to the delinquency of a minor to serve

60 days in jail or to pay a fine of $120, and on the

disorderly conduct charge to serve 15 days in jail

(concurrently with the sentence on the first charge)

or to pay a fine of $30 (A. 9-10). (The record does

not show how the sentence was carried out.)

On May 21, 1975, an indictment was returned in

the United States District Court for the District of

Arizona (A. 11) charging that respondent, on Octo-

ber 16, 1974, “did assault * * * with intent to rape”

the Indian girl, in violation of the Major Crimes Act,

18 U.S.C. 1153, and Ariz. Rev. Stat. Ann. 13-252

(1956). This indictment was dismissed on a ground

not relevant here.’ A superseding indictment (A. 12)

returned on November 19, 1975, charged that on

October 16, 1974, respondent “did carnally know a

female Indian * * *, not his wife, who had not then

attained the age of sixteen years but was fifteen

years of age,” in violation of 18 U.S.C. 1153 and

2023.

The district court ruled that a provision of 18 U.S.C. 1153

(since deleted from the statute (Indian Crimes Act of May

29, 1976, Pub. L. 94-297, 90 Stat. 585)) providing that “any

Indian who commits the offenses of rape or assault with in-

tent to commit rape upon any female Indian within the Indian

country shall be imprisoned at the ciscretion of the court”

was impermissibly vague. (The Solicitor General was not

informed of this decision by the United States Attorney and

so did not have an opportunity to consider whether the gov-

ernment should appeal it.)

Respondent moved to dismiss this indictment on the

ground that his federal prosecution was barred by the

Double Jeopardy Clause of the Fifth Amendment be-

cause of his previous conviction in tribal court of a

lesser included offense arising from the same transac-

tion (A. 25). The district court granted the motion

to dismiss (A. 32).

The court of appeals affirmed (Pet. App. A, pp. la-

8a). The court framed the primary issue as “whether

Indian tribal courts and federal district courts are

‘arms of different sovereigns’ for purposes of the Dou-

ble Jecpardy Clause” (id. at la). The court noted

that tribal courts “are not merely a political unit of

the Federal Government, such as federal district

courts, military tribunals, etc.,” and that the Indians

are “ ‘a separate people, with the power of regulating

their internal and social relations’” (id. at 4a-5a,

quoting McClanahan v. Arizona State Tax Commis-

sion, 411 U.S. 164, 173). The court nevertheless con-

cluded that the Indian tribes “do not have the sov-

ereign status of a state” (Pet. App. A, p. 5a), and

therefore that “Indian tribal courts and United States

district courts are not arms of separate sovereigns”

(id. at 6a). The court accordingly ruled that the

“dual sovereignty” principle applied by this Court in

the federal-state context (see, e. g., Abbate v. United

States, 359 U.S. 187) was not applicable to this case.

The court then applied the rule that the Double

Jeopardy Clause bars prosecution of a defendant who

has previously been convicted by the same sovereign

of a lesser included offense based on the same acts

(Pet. App. A, p. 7a; see Brown v. Ohio, No. 75-6933,

decided June 16, 1977). The court held that “an in-

dividual cannot be indicted in federal court for a

crime having been tried in Indian tribal court for a

lesser included offense” (Pet. App. A, p. 8a). With

respect to the charges here, the court determined that

the offense of willfully contributing to the delinquency

of a minor (one of the tribal offenses) was a lesser

included offense of carnal knowledge of a female

under the age of 16 years (the federal charge) (id. at

7a-8a). Accordingly, the court affirmed the dismissal

of the indictment.

SUMMARY OF ARGUMENT

A. Although the Double Jeopardy Clause gen-

erally bars a second prosecution for the same offense

after a conviction or acquittal, there is a firmly

established exception that applies to separate prose-

cutions by separate sovereigns. United States v.

Lanza, 260 U.S. 377; Moore v. Illinois, 14 How. 13.

Ain act denounced as a crime by both * * * sov-

ereignties is an offense against the peace and dignity

of both and may be punished by each.” United States

v. Lanza, supra, 260 U.S. at 382.

The Court has consistently applied this “dual sov-

ereignty” principle in the context of successive state

and federal prosecutions. Abbate v. United States,

359 U.S. 187; Bartkus v. Illinois, 359 U.S. 121. In

doing so, it has pointed out that “[u)ndesirable con-

sequences would follow” if the principle were aban-

doned (359 U.S. at 195). If a prior state prosecution

were deemed to bar a federal prosecution based on the

same conduct, “federal law enforcement must neces-

sarily be hindered,” especially where “the defendants’

acts impinge more seriously on a federal interest than

on a state interest” (ibid.). One solution would be

“to displace state power to prosecute crimes based on

acts which might also violate federal law,” but “no

one would suggest that [this] is desirable,” for

it “would bring about a marked change in the dis-

tribution of powers to administer criminal justice

„ „ „„ (ibid.).

At the same time, the Court has refused to extend

the dual sovereignty principle to permit successive

prosecutions in contexts where both courts derive their

authority from the same sovereignty. This is true of

municipal courts and state courts (Waller v. Florida,

397 U.S. 387, 393), and of federal courts and terri-

torial courts (Grafton v. United States, 206 U.S. 333,

354-355).

The test for determining the applicability of the dual

sovereignty principle is whether the two govern-

ments are in a meaningful sense “two sovereignties,

deriving power from different sources,” each of which

is “exercising its own sovereignty” in “determining

what shall be an offense against its peace and dignity”

(United States v. Lanza, supra, 260 U.S. at 382).

B. Under this test, the dual sovereignty principle

applies to permit a federal prosecution for a “major

crime” following a conviction in an Indian tribal court

La ee ea

for a lesser included offense based on the same con-

duct.

1. It is a fundamental principle of American In-

dian law, repeatedly acknowledged by this Court and

the Congress, that the Indian tribes are “ ‘distinct,

independent, political communities? which are “quali-

fied to exercise powers of self-government, not by

virtue of any delegation of powers from the Federal

Government, but rather by reason of their original

tribal sovereignty.” Cohen, Handbook of Federal In-

dian Law 122 (1942 ed.), quoting Worcester v. Geor-

gia, 6 Pet. 515, 559. In particular, the power the

tribes have to try and punish criminal behavior by

Indians in Indian country springs not from any Act

of Congress or other authorization of the federal gov-

ernment, but from the tribes’ original sovereignty.

To be sure, the tribes are subject to the plenary au-

thority of Congress, which has limited tribal court

jurisdiction both substantively and procedurally. Con-

gress has also extended federal criminal jurisdiction

to certain crimes committed by Indians in Indian

country, including the crime with which respondent

Wheeler was charged in federal district court in this

case. But the criminal jurisdiction retained by the

tribal courts is part of the authority of the tribes

as “a separate people” (United States v. Antelope,

430 U.S. 641, 646), as “unique aggregations possess-

ing attributes of sovereignty over both their members

and their territory” (United States v. Mazurie, 419

U.S. 544, 557).

The court of appeals relied on Congress’ “complete,

plenary control over the criminal jurisdiction of tribal

courts” (Pet. App. A, p. 5a) to conclude that the

authority those courts exercise is federal authority.

This approach, which confuses congressional power

to limit tribal authority with the source of the author-

ity the tribe retains, was rejected by this Court in

Talton v. Mayes, 163 U.S. 376, 384.

Since tribal courts exercise “local powers not created

by the Constitution” (id. at 382), those courts are not

so identified with the federal government that a tribal

prosecution becomes a prosecution by an arm of the

federal sovereign. Therefore, the Double Jeopardy

Clause, which forbids a second prosecution “after a

first trial for the same offense under the same au-

thority” (United States v. Lanza, supra, 260 U.S. at

382 (emphasis added)), does not bar a prosecution

in federal court after conviction in a tribal court of

a lesser included offense arising from the same acts.

2. Failure to apply the dual sovereignty principle

to successive prosecutions by tribal and federal courts

would lead to “undesirable consequences” of the same

kind that the principle, as applied in the federal-state

context, was designed to avoid. Federal law enforce-

ment would be hindered if the Double Jeopardy Clause

bars a federal prosecution following a prosecution

in Indian tribal court for a lesser included offense.

In this case, for example, by pleading guilty to a

minor offense in tribal court and incurring a rela-

tively minor sentence (which could be discharged by

payment of a $150 fine), respondent would avoid

prosecution in federal court for a major federal crime

for which he could be imprisoned for up to 15 years.

Since tribal courts by virtue of the Indian Civil

Rights Act (25 U.S.C. 1302 (7)) may impose no

sentence exceeding six months’ imprisonment, it is

reasonable to assume that other persons in respond-

ent’s position would seek to avoid punishment com-

mensurate with the gravity of their offense by first

standing trial or pleading guilty in tribal court.

Under existing institutional arrangements, federal

authorities would be powerless to prevent this from

happening.

To remove the resulting obstruction to federal law

enforcement, Congress would be forced to restructure

the relationship between tribal and federal authorities.

Its most likely response would be to impose further

limitations on the powers of tribal courts, or even to

eliminate the criminal jurisdiction of those courts.

It could do this, however, only at substantial cost to

the prevailing federal policy of fostering tribal self-

government and, in particular, of encouraging tribes

to rely on their own judicial systems as a keystone

of that self-government.

C. But even if tribal courts are viewed as arms

of the federal sovereign, the Double Jeopardy Clause

does not bar prosecution for a Major Crimes Act

felony in a federal district court after conviction of

a lesser included offense under tribal law in tribal

court. Although the “general rule” is that the same

governmental authority cannot try a defendant for a

— greater offense after it has convicted him of a lesser

included offense (Brown v. Ohio, No. 75-6933, decided

June 16, 1977), that general rule “does have some

exceptions” (Jeffers v. United States, No. 75-1805,

decided June 16, 1977, slip op. 13). The circum-

stances of this case either bring it within one of the

recognized exceptions or warrant recognition of a

further exception.

The exceptions recognized by this Court reflect cir-

cumstances in which there were compelling reasons

why the greater offense could not have been tried, or

was not tried, simultaneously with the lesser offense.

Such reasons exist in the unique circumstances pre-

sented by tribal and federal courts, which as a prac-

tical matter operate quite independently of each other

(as is also true of tribal and federal prosecuting au-

thorities). The sentencing authority of tribal courts

is so limited that they cannot adequately punish de-

fendants who have committed serious crimes. Yet

they are empowered to try such defendants, and such

power is a legitimate component of tribal self-govern-

ment. Moreover, they may often bring such prosecu-

tions, as the Navajo court did in this case, before the

time when a United States Attorney would be able to

secure a federal indictment or, perhaps, even learn

of the occurrence of the offense.

In such circumstances it is not unreasonable for

the United States Attorney, in the exercise of his

separate prosecutorial authority, to institute a subse-

quent prosecution seeking a penalty commensurate

with the defendant’s crime. Indeed, such a prosecu-

tion would seem compelled by the Congressional policy

reflected in the Major Crimes Act and recognized by

this Court.

Moreover, in this unique context, the greater (fed-

eral) and lesser included (tribal) offenses should not

be regarded as “the same offense” for double jeopardy

purposes. In this case carnal knowledge (the federal

offense) was not, and could not have been, charged

against respondent in tribal court, while contributing

to the deliquency of a minor (the tribal offense) was

not and could not have been charged against respond-

ent in federal district court. Since no single court had

jurisdiction of all the alleged crimes, another excep-

tion to the double jeopardy bar is applicable.

ARGUMENT

THE DOUBLE JEOPARDY CLAUSE DOES NOT PRO-

HIBIT PROSECUTION OF AN INDIAN DEFENDANT

IN A FEDERAL COURT BECAUSE OF HIS PRIOR

CONVICTION IN AN INDIAN TRIBAL COURT OF A

LESSER INCLUDED OFFENSE ARISING FROM THE

SAME ACTS.

A. The Double Jeopardy Clause Does Not Bar Successive

Prosecutions by Separate Sovereign Governments for

the Same Offense.

1. The Double Jeopardy Clause of the Fifth

Amendment “protects against a second prosecution

for the same offense after acquittal. It protects

against a second prosecution for the same offense

after conviction. And it protects against multiple

punishments for the same offense.” North Carolina

v. Pearce, 395 U.S. 711, 717. The Clause also “for-

bids successive prosecution and cumulative punish-

ment for a greater and lesser included offense” aris-

ing from the same acts. Brown v. Ohio, No. 75-6933,

decided June 16, 1977, slip op. 8.

A well-established exception applies, however, in

the case of separate prosecutions for the same offense

by separate sovereigns. Recognized at least as early

as the decision of this Court in Fox v. Ohio, 5 How.

410 (see Abbate v. United States, 359 U.S. 187, 190-

194; Bartkus v. Illinois, 359 U.S. 121, 131-132), the

“dual sovereignty” principle was explained in Moore

v. Illinois, 14 How. 13, 19, as follows:

Every citizen of the United States is also a citi-

zen of a State or territory. He may be said to

owe allegiance to two sovereigns, and may be

liable to punishment for an infraction of the

laws of either. The same act may be an offense

or transgression of the laws of both. * * * That

either or both may (if they see fit) punish such

an offender, cannot be doubted.

In United States v. Lanza, 260 U.S. 377, the Court

for the first time applied the dual sovereignty prin-

ciple to sustain a federal prosecution (under the

Volstead Act) arising out of the same facts as a

prior state conviction. The Court said (260 U.S. at

382):

We have here two sovereignties, deriving power

Each government in determining what shall be

an offense against its peace and dignity is exer-

cising its own sovereignty, not that of the other.

“It follows,” the Court said (ibid.), “that an act de-

nounced as a crime by both national and state sover-

eignties is an offense against the peace and dignity

of both and may be punished by each. * * * [T]he

double jeopardy * * * forbidden [by the Fifth Amend-

ment] is a second prosecution under the authority of

the Federal Government after a first trial for the

same offense under the same authority.”

The dual sovereignty principle was reaffirmed in

Bartkus v. Illinois, 359 U.S. 121, and Abbate v. United

States, 359 U.S. 187. In Bartkus, which dealt with the

validity under the Fourteenth Amendment of a state

prosecution foliowing a federal prosecution for the

same offense, the Court cited an array of cases as ir-

refutable evidence that state and federal courts have

for years refused to bar a second trial even though

there had been a prior trial by another government

for a similar offense,” and refused to disregard the

“long, unbroken, unquestioned course of impressive

adjudication” by ruling that due process compelled

such a bar (359 U.S. at 136). And in Abbate, in

which the federal prosecution followed the state prose-

cution, the Court found “[n]o consideration or per-

suasive reason not presented to the Court in the prior

cases * * * why we should depart from [Lanza’s]

firmly established principle” (359 U.S. at 195).

Instead, the Court in Abbate found that persuasive

policy reasons supported continued adherence to that

free to prosecute criminal acts violating their

laws, and the resultant state prosecutions bar

federal prosecutions based on the same acts,

eral law enforcement must necessarily be

;

oe i8

fendants’ acts impinge more seriously on

eral interest than on a state interest. But

would suggest that, in order to maintain

fectiveness of federal law enforcement, it

* F

s FRE

offenses, the efficiency of federal law enforcement

2. While in Lanza, Bartkus, and Abbate the Court

held that the dual sovereignty principle permitted

successive federal and state prosecutions, the Court

subsequently held in Waller v. Florida, 397 U.S. 387,

that it did not permit successive prosecutions in muni-

cipal courts and state courts of general jurisdiction,

since the power of the former “springs from the same

organic law” that created the latter (id. at 393). See

also Grafton v. United States, 206 U.S. 333, 354-355

(Phillipine territorial court deriveſs] its powers”

from the federal government); Puerto Rico v. Shell

Co., 302 U.S. 253, 264 (Puerto Rican and federal

courts “whether exercising federal or local jurisdic-

tion, are creations emanating from the same sover-

eignty”). The test of whether the dual sovereignty

principle applies is whether the two governments that

seek to prosecute for the same acts are in a meaning-

ful sense “two sovereignties, deriving power from

different sources,” each of which is “exercising its

own sovereignty” in “determining what shall be an

offense against its peace and dignity” (United States

v. Lanza, supra, 260 U.S. at 382).

The inquiry in the present case, therefore, is

whether the Indian tribes possess sufficient charac-

* Quoting from Reynolds v. Sims, 377 U.S. 583, 575, the

Court in Waller observed (397 U.S. at 392):

Political subdivisions of States—counties, cities, or

whatever—never were and never have been considered as

sovereign entities. Rather, they have been traditionally

regarded as subordinate governmental! instrumentalities

created by the State to assist in the carrying out of state

governmental functions.

teristics of sovereignty and independence to make the

dual sovereignty principle applicable when a federal

prosecution follows a tribal court conviction for an

offense arising from the same acts. The court of ap-

peals held that they do not, that in essence the tribal

courts are arms of the federal government. As we

propose to show, however, this conclusion misappre-

hends the nature of the Indian tribes and of their

historically rooted relationship with the federal gov-

ernment. What is more, it threatens to interfere with

federal law enforcement in a way that could only be

remedied by a major redistribution of legal powers

between the federal government and the Indian tribes,

at the cost of basic values embedded in the existing

Indian policy of Congress and the Executive Branch.

B. The Dual Sovereignty Principle Applies to Permit Suc-

cessive Prosecutions by an Indian Tribe and the Fed-

eral Government.

1. The Indian tribes possess attributes of sovereignty

from which their authority is derived independently

of the federal government.

a. More than 35 years ago Felix Cohen stated that

“[f]rom the earliest years of the Republic the Indian

tribes have been recognized as ‘distinct, independent,

political communities,’ and, as such, qualified to exer-

cise powers of self-government, not by virtue of any

delegation of powers from the Federal Government,

but rather by reason of their original tribal sover-

eignty.“ This fundamental principle of American

* Handbook of Federal Indian Law 122 (1942 ed.) (footnote

omitted), quoting Worcester v. Georgia, 6 Pet. 515, 559. See

also Powers of Indian Tribes, 55 I. D. 14, 19-20 (1984).

ee eo

Indian law has repeatedly been acknowledged by this

Court and by Congress.“

It finds support, first, in the Constitution, which

treats Indian tribes in pari materiae with States and

foreign nations. Article I, Section 8, clause 3. Al-

though the tribes are no longer fully sovereign na-

tions, this Court has emphasized that they possess a

unique status as ‘a separate people’ with their

own political institutions” (United States v. Antelope,

430 U.S. 641, 646), that they “are unique aggrega-

tions possessing attributes of sovereignty over both

their members and their territory” (United States v.

Mazurie, 419 U.S. 544, 557), and that “[i]t must al-

ways be remembered that the various Indian tribes

were once independent and sovereign nations, and that

their claim to sovereignty long predates that of our

As Cohen wrote (Handbook of Federal Indian Law, supra,

p. 123, footnotes omitted) :

The whole course of judicial decision on the nature

of Indian tribal powers is marked by adherence to three

fundamental principles: (1) An Indian tribe possesses,

in the first instance, all the powers of any sovereign

state. (2) Conquest renders the tribe subject to the leg-

islative power of the United States and, in substance,

terminates the external powers of sovereignty of the

tribe, e. g., its power to enter into treaties with foreign

nations, but does not by itself affect the internal

sovereignty of the tribe, i. e., its powers of local self-

government. (3) These powers are subject to qualification

by treaties and by express legislation of Congress, but,

save as thus expressly qualified, full powers of internal

sovereignty are vested in the Indian tribes and in their

duly constituted organs of government.

own Government” (McClanahan v. Arizona State Tax

Commission, supra, 411 U.S. at 172).

To be sure, the Indian tribes are wards of the fed-

eral government and are subject to its plenary au-

thority to regulate their affairs. Winton v. Amos,

255 U.S. 373, 391; Lone Wolf v. Hitchcock, 187 U.S.

553. Indeed, Congress has imposed substantial limi-

tations upon tribal authority and independence. But

to acknowledge that the tribes are subject to such

regulation by Congress is not to say that they have

lost all vestiges of their original sovereignty. Save

where Congress has spoken to the contrary, the tribes

exercise governmental powers that derive from their

original status as sovereign nations.

Like other peoples who have “the power of regu-

lating their internal and social relations” (United

States v. Kagama, 118 U.S. 375, 382), the tribes have

exclusive authority, in the absence of congressional

legislation to the contrary, to confer or withdraw

tribal citizenship. Roff v. Burney, 168 U.S. 218,

222; Cherokee Intermarriage Cases, 203 U.S. 76; ef.

Santa Clara Pueblo v. Martinez, No. 76-682, certio-

rari granted May 16, 1977. They have “been ac-

corded the widest possible latitude in regulating the

domestic relations of their members” (Handbook of

Federal Indian Law, supra, at 137 ), including the

power to grant marriages and divorces (United States

v. Quiver, 241 U.S. 602; Carney v. Chapman, 247

U.S. 102) ; to provide for adoptions and guardianships

(Fisher v. District Court, 424 U.S. 382); and to pre-

scribe the manner of descent and distribution of prop-

erty. Jones v. Meehan, 175 U.S. 1.

Unless Congress has provided otherwise, the tribes

are immune from suit in state or federal court, pro-

tected in much the same way as the Eleventh Amend-

ment protects the States and the principle of sovereign

immunity protects the United States. United States

v. United States Fidelity & Guaranty Co., 309 U.S.

506, 512; Puyallup Tribe, Inc. v. Department of Game

of Washington, No. 76-423, decided June 23, 1977.

The tribes possess inherent authority to tax (e. g.,

Morris v. Hitchcock, 194 U.S. 384; Barta v. Oglala

Sioux Tribe of Pine Ridge Reservation, 259 F.2d 553

(C. A. 8)), and to regulate conduct on the reservation

whether it involves Indians or non-Indians. E. g.,

United States v. Mazurie, 419 U.S. 544 (upholding,

with respect to non-Indians, a tribal ordinance re-

quiring a license to sell liquor in Indian country).*

Williams v. Lee, 358 U.S. 217, illustrates the broad self-

governing powers of the Navajo Nation in particular. That

case involved a civil suit brought in Arizona state court by a

non-Indian to collect for goods sold to an Indian and his wife

on the Navajo reservation. After the Arizona Supreme Court

b. Like tribal powers generally, tribal criminal

jurisdiction in particular springs from a tribe’s origi-

nal sovereignty. See Department of the Interior, Fed-

eral Indian Law 444-449 (1958 ed.). This Court has

recognized that, in the absence of an explicit with-

drawal of jurisdiction by Congress, the power to try

and punish criminal behavior by Indians in Indian

country inheres in tribal courts, and that this power

does not depend on any grant from Congress but is

a residual attribute of tribal sovereignty, one that has

often been expressly acknowledged by treaty. See

Worcester v. Georgia, 6 Pet. 515, 560-561; Talton v.

Mayes, 163 U.S. 376, 379-380; United States v. Quiver,

supra, 241 U.S. at 605-606. In recognition of this re-

tained power, not only the treaties between the tribes

and the federal government, but also the original

upheld the jurisdiction of the lower court, this Court reversed

and held that jurisdiction over the matter rested exclusively

with the Navajo tribal court. From its previous cases begin-

ning with Worcester v. Georgia, 6 Pet. 515, the Court con-

cluded that “[e]ssentially, absent governing Acts of Congress,

the question has always been whether the state action infringed

on the right of reservation Indians to make their own laws and

be ruled by them” (358 U.S. at 220). The Court said that the

1868 treaty between the United States and the Navajo Nation

(15 Stat. 667) reflected “the understanding that the internal

affairs of the Indians remained exclusively within the juris-

uction of [the] tribal government * * (358 U.S. at 221-

222). On the basis of these principles, as well as the finding

that no Act of Congress gave state courts jurisdiction over

the controversy in question, the Court concluded that there

can be no doubt that to allow the exercise of state jurisdiction

here would undermine the authority of the tribal courts over

Reservation affairs and hence would infringe on the right of

the Indians to govern themselves” (id. at 223).

17565¹³' ² ö EE ee ⅛ ee a ne ae ee

statutory enactments of Congress, consistently denied

the federal courts even concurrent jurisdiction over

crimes between Indians in Indian country, leaving

exclusive authority to deal with such crimes to the

tribes. See generally Clinton, Development of Crim-

inal Jurisdiction over Indian Lands: The Historical

Perspective, 17 Ariz. L. Rev. 951, 953-972 (1975).

Thus, the first permanent Indian Trade and Inter-

course Act (Act of June 30, 1834, Section 25,

4 Stat. 729, 733) applied to Indian country the laws

governing crimes committed in places under the ex-

clusive jurisdiction of the United States, but provided

that [tj he same shall not extend to crimes committed

by one Indian against the person or property of an-

other Indian.” See 18 U.S.C. 1152. As a result of

this limitation on federal authority, this Court in Ex

Parte Crow Dog, 109 U.S. 556, held that federal

courts had no jurisdiction over the murder of an In-

dian by another Indian on a reservation, since, as the

Court later explained, “in the absence of explicit con-

gressional direction, the Indian tribe retained exclu-

sive jurisdiction to punish the offense.” Keeble v.

United States, 412 U.S. 205, 209-210.

In response to the Crow Dog decision, Congress

passed the Major Crimes Act (Act of March 3, 1885,

23 Stat. 362, 385), which made it a federal crime for

an Indian to commit any of seven major offenses on

an Indian reservation.’ See 18 U.S.C. 1153. But that

Act was “a carefully limited intrusion of federal

The Act presently includes 14 enumerated offenses. See

Indian Crimes Act of May 29, 1976, Pub. L. 94-297, 90 Stat.

585.

power into the otherwise exclusive jurisdiction of the

Indian tribes to punish Indians for crimes committed

on Indian land.” United States v. Antelope, supra,

430 U.S. at 643 n. 1, quoting Keeble v. United States,

supra, 412 U.S. at 209 (describing the government’s

characterization of the Act). After enactment of the

Major Crimes Act, the Court in United States v.

Quiver, supra, reaffirmed that punishment for offenses

by one Indian against another, except the offenses

enumerated in the Major Crimes Act, remained within

the exclusive jurisdiction of the tribes. This principle,

the Court said (241 U.S. at 605-606), was “in accord

with the policy reflected by the legislation of Con-

gress and its administration for many years, that the

relations of the Indians, among themselves—the con-

duct of one toward another—is to be controlled by

the customs and laws of the tribe, save when Congress

expressly or clearly directs otherwise I. ]“

Indian tribal courts, as the instrumentalities of a

tribe’s criminal jurisdiction, derive their authority

not from the federal government but from the powers

of seif-government inhering in the tribe.“ See Clinton,

* Indian tribal courts are not to be confused with the Courts

of indian Offenses, so-called C. F. R. courts,” that were estab-

tom have broken down * * *” (25 C.F.R. 11.1(b)).

Clinton, Criminal Jurisdiction over Indian Lands: 14

through a Jurisdictional Maze, 18 Ariz. L. Rev.

(1976). The regulations also establish a Code of Indian

these

Criminal Jurisdiction over Indian Lands: A Journey

Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503,

553-564 (1976). No federal statute creates tribal

courts, authorizes their existence, or confers juris-

diction on them. Just as no Act of Congress is the

source of tribal immunity or the tribal power to tax,

so the powers of the tribal courts exist independently

as an unextinguished residuum of the tribes’ origi-

nal sovereignty. 7

Of course, Congress has imposed both substantive

and procedural limitations on the exercise of tribal

court jurisdiction, as it has on other aspects of tribal

authority. The most significant procedural constraints

are established by the Indian Civil Rights Act of 1968

(Title II, 82 Stat. 77, 25 U.S.C. 1301, et seg.),

which requires tribal proceedings to provide most of

the protections of the Bill of Rights of the federal

Constitution and which limits the punishment tribal

courts may impose to that prescribed for petty of-

approved by the Secretary of the Interior, the provisions in

the regulations dealing with the Courts of Indian Offenses are,

in the main, no longer applicable to that tribe. Because federal

policy since 1934 has generally been to encourage the tribes

to set up their own courts (see the Indian Reorganization

Act of 1934 (Wheeler-Howard Act), 48 Stat. 987, 25 U.S.C.

476, et seq.), Courts of Indian Offenses exist on in@reasingly

few reservations. See Clinton, supra, 18 Ariz. L. Rev. at 554.

There is some question whether Courts of Indian Offenses

derive their authority from tribal sovereignty (see Colliflower

v. Garland, 342 F.2d 369 (C. A. 9)), since they were created

and operate pursuant to federal regulations. Cf. Federal In-

dian Law, supra, at 451-452. But that question is immaterial

here because the Navajo Tribal Court is a true tribal court

(see p. 26, n. 10, infra), not a Court of Indian Offenses.

fenses (see 25 U.S.C. 1302(7)). In addition, the

Secretary of the Interior has promulgated regulations

relating to the qualification and appointment of tribal

judges and providing for the Secretary’s approval of

tribal criminal codes. See 25 C. F. R. 11.1(d)-11.1(e)

and 11.3-11.4; Clinton, supra, 18 Ariz. L. Rev. at 554,

557.

But these federal limitations on the authority of

tribal courts do not affect the source or character of

the authority those courts retain, an authority that

springs from the nature of the tribes as “quasi-sover-

eign * * * entities” (Morton v. Mancari, 417 U.S.

535, 554).° To the extent that Congress has not

* The tribal governmental powers were not, as respondent

appears to argue (Memo. in Opp. 7), transformed into fed-

erally created powers by passage of the Indian Reorganization

Act of 1934 (Wheeler-Howard Act), 48 Stat. 987. That Act is

not an organic one; as Professor Cohen noted (Handbook of

Federal Indian Law, supra, at pp. 129-180), it “had little or no

effect upon the substantive powers of tribal self-government

vested in the various Indian tribes * * *.” In particular, Sec-

tion 16 of the Act, 25 U.S.C. 476, provides that a tribe residing

on a reservation “shall have the right to organize for its

common welfare, and may adopt an appropriate constitution

and bylaws,” subject to ultimate approval by the Secretary

of the Interior. But as the language of this and succeeding

sections makes clear, adoption of a tribal constitution under

the Act is optional with the tribes and does not affect tribal

recognition by the federal government. See, e. g., 25 U.S.C.

478b. Indeed, although 25 U.S.C. 476 grants certain powers

to tribes that adopt a constitution under the Act (e.g., the

right to employ legal counsel), it states that these powers are

“[{i]n addition to all powers vested in any Indian tribe or

tribal council by existing law * * *.”

limited their power, the tribal courts exercise a crimi-

nal jurisdiction essentially like that exercised by any

sovereign.”

e. The court of appeals based its conclusion that

the Indian tribes cannot be considered separate sov-

1 The institutions of the Navajo Tribe illustrate these prin-

ciples. The governing law is the Navajo Tribal Code, an exten-

sive legal code (comprising 28 titles and published in three vol-

umes) enacted by the Tribe’s elected legislature, the Navajo

Tribal Council. Title 17 of the Code contains the law and order

provisions, including those that respondent was convicted of

violating. Many of these provisions were originally taken over

from a law and order code promulgated by the Secretary of the

Interior (see 25 C. F. R. 11.388-11.87NH), but once the Code was

adopted by the Tribal Council and approved by the Secretary

of the Interior (see 25 C. F. R. 11.1(e)), it became the Tribe's

law; the Secretary by approving the tribal enactments “had

simply recognized the valid governing authority of the Tribal

Council,” and his own code “was no longer to apply to the Na-

vajo Tribe.” Oliver v. Udall, 306 F.2d 819, 822-828 (C.A.D.C.),

certiorari denied, 372 U.S. 908; cf. Native American Church v.

Navajo Tribal Council, 272 F.2d 181 (C.A.D.C.).

Enforcement of the Navajo law and order code occurs in

the tribal courts, which consist of the Trial Court of the

Navajo Tribe and the Court of Appeals of the Navajo Tribe.

See 7 Navajo Tribal Code 101. These courts were established

by resolution of the Tribal Council in 1958 to take the place

of the Courts of Indian Offenses which had been established

on the reservation (see note 8, supra; Williams v. Lee, supra,

858 U.S. at 221-222). The new courts were “clearly and exclu-

sively the judicial branch of the Navajo nation.” Davis, Court

Reform in the Navajo Nation, 43 J. Am. Jud. Soc’y 58, 54

(1959); see 1972 Annual Report of the Judicial Branch,

Navajo Nation 8 (“The Courts of the Navajo Nation derive

their authority and power from the Navajo Tribal Council

„ „%). In recent years approximately 29,000 criminal cases

annually are filed in these courts. 1976 Annual Report of

the Judicial Branch, Navajo Nation 24.

ereigns for the purpose of the Double Jeopardy Clause

largely on Congress’ “complete, plenary control over

the criminal jurisdiction of tribal courts” (Pet. App.

A, p. 5a). This approach confuses congressional pow-

er to limit (or abolish) tribal authority with the

source of whatever authority the tribe retains.

This Court rejected such an approach in Talton v.

Mayes, 163 U.S. 376. There, the federal government’s

plenary authority over Indian tribes was asserted as

a basis for concluding that the Fifth Amendment ap-

plied to Indian tribal court proceedings. The question,

thus, was “whether the powers of local government

exercised by the Cherokee nation are Federal powers

created by and springing from the Constitution of the

United States, and hence controlled by the Fifth

Amendment to that Constitution, or whether they are

local powers not created by the Constitution, although

subject to its general provisions and the paramount

authority of Congress” (id. at 382-383). The Court

responded that It he repeated adjudications of this

court have long since answered the former question in

the negative” (id. at 383). The Court recognized that

all tribal rights of self-government “are subject to the

supreme legislative authority of the United States,”

but held that “[t]he existence of the right in Con-

gress to regulate the manner in which the local pow-

ers of the Cherokee nation shall be exercised does not

render such local powers Federal powers arising from

and created by the Constitution of the United States”

(id. at 384). “It follows that as the powers of local

self-government enjoyed by the Cherokee nation ex-

isted prior to the Constitution, they are not operated

upon by the Fifth Amendment *” (ibid.).

The position of the court of appeals cannot be

squared with Talton. If tribal courts exercise “local

powers not created by the Constitution” and not sub-

ject to the Fifth Amendment, they are not so identi-

fied with the federal government that a tribal prose-

cution becomes a prosecution by an arm of the federal

sovereign.” Talton establishes that, contrary to the

court of appeals’ approach, the relevant focus in de-

fining the nature of tribal self-government is not on

the power of the federal government to limit tribal

authority, but on the source from which the tribal au-

thority springs. That source, with the Navajos as

with the Cherokees, “existed prior to the Constitution”

and does not flow from the Constitution. The source of

authority of the tribal courts is not the federal gov-

" Respondent argues (Memo. in Opp. 8-9) that reliance on

Talton is no longer valid because the Indian Civil Rights Act

of 1968, 25 U.S.C. 1301, et seq., now subjects tribal authority

to most of the same restrictions found in the constitutional

Bill of Rights. The Indian Civil Rights Act confirms rather

than undermines the holding of Talton, since the need for the

statutory limitations on tribal power imposed by the Act was

largely based on the premise that tribal courts are not arms of

the federal government and thus not subject to constitutional

limitations. See 8. Rep. No. 841, goth Cong., Ist Sess. 6

(1967); Burnett, An Historical Analysis of the 1968 “Indian

Civil Rights” Act, 9 Harvard Journal on Legislation 557, 588

(1972); Clinton, supra, 18 Ariz. L. Rev. at 561-562; Note, The

Indian Bill of Rights and the Constitutional Status of Tribal

Governments, 82 Harv. L. Rev. 1348, 1845 (1969).

ernment, as the court of appeals held, but the origi-

nal and inherent sovereignty of the Indian tribe.”

The court of appeals further stated that if “forced

to choose a relevant analogy” by which to define the

status of tribal courts for dual sovereignty pur-

The court of appeals for the Eighth Circuit has recently

held, in express disagreement with the court of appeals here,

that Tribal Courts are not arms of the same sovereign as the

United States District Court,“ and thus that the Double

Jeopardy Clause does not bar successive tribal and federal

prosecutions for the same offense. United States v. Walking

Crow, No. 77-1136, decided August 10, 1977, slip op. 4, petition

for a writ of certiorari pending (No. 77-5539), citing and

quoting United States v. Kills Plenty, 466 F.2d 240 (C.A. 8),

and Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reserva-

tion, 231 F.2d 89 (C.A. 8).

v. Schlie, 544 F.2d 1007 (C.A. 9), certiorari granted sub nom.

Oliphant v. The Suquamish Indian Tribe, No. 76-5729, June

offenses, reasoned that “the power to preserve order on the

reservation, when necessary by punishing those who violate

tribal law, is a sine qua non of the sovereignty that the

Suquamish originally possessed” (544 F.2d at 1009). In the

court’s view, the question was “not whether Congress has

(or a treaty) take that jurisdiction away” (id. at 1009 n. 1).

See also Tom v. Sutton, 533 F.2d 1101, 1108 (C. A. 9) (“Under

their sovereign status, the Indian tribes are vested with the

inherent power to create and administer a criminal] justice

system”). See also Settler v. Lameer, 507 F.2d 231 (C.A. 9);

Ortiz-Barraza v. United States, 512 F.2d 1176 (C.A. 9). But

see Colliflower v. Garland, 2 2 F.2d 369 (C.A. 9) (dealing

with a Court of Indian Offenses (see note 8, supra) ).

poses, it would select not state courts but terri-

torial courts, which were described in Grafton v.

United States, 206 U.S. 333, as “civil court[s] pro-

ceeding under the authority of the United States”

(Pet. App. A, pp. 5a-6a). That choice was mis-

guided.

The Philippine territorial court under consideration

in Grafton was, as this Court stated, a “tribunal de-

riving its jurisdiction and authority from the United

States” (206 U.S. at 352). “[T]he Government of

the Philippines owes its existence wholly to the United

States, and its judicial tribunals exert all their pow-

ers by authority of the United States” (id. at 354).

As the Court has since stated in Waller v. Florida,

397 U.S. 387, the relationship of the Philippine terri-

torial government to the federal government was

analogous for dual sovereignty purposes to “the re-

lationship between municipal and state governments,”

where the power of the municipal court “springs from

the same organic law that created the state court

of general jurisdiction” (id. at 393). See note 2,

supra.

In both Grafton and Waller, the two governmental

entities seeking to prosecute for the same acts de-

rived their authority from the same source, the

federal government in Grafton and the state govern-

ment in Waller. In contrast, as Talton v. Mayes

makes clear, the powers of Indian tribal courts do

not spring from the federal government but from a

preexisting and independent tribal sovereignty that

the federal government simply continues to recog-

nize.”

d. Since tribal prosecutions are not prosecutions

by an arm of the federal sovereign, the Double Jeop-

ardy Clause—which forbids a second prosecution

In Puerto Rico v. Shell Co., 302 U.S. 253, relied on by

respondent (Memo. in Opp. 3-4), this Court in dicta (see

Waller v. Florida, supra, 397 U.S. at 393 n. 5) stated that the

insular courts of Puerto Rico and the federal district court for

Puerto Rico “are creations emanating from the same sov-

ereignty” and therefore that prosecution in one court would

bar prosecution in the other court for the same offense (302

U.S. at 264). The Court’s opinion describes at length (id. at

258-264) the source of Puerto Rico’s authority as a “congres-

sional grant of power” reflecting “the general purpose of Con-

gress to confer power upon the government of Puerto Rico to

legislate in respect of all local matters” (id. at 263). Puerto

Rico's status in 1987 when Shell Co. was decided was thus dif-

ferent from that of a State or an Indian tribe, neither of which

derives its authority from federal statutes.

Respondent points out (Memo. in Opp. 3-4) that Puerto

Rico now has a “degree of autonomy and independence nor-

mally associated with States of the Union” (Examining Board

of Engineers v. Flores de Otero, 426 U.S. 572, 594; see Pet.

App. A, p. 5a n. 7), and argues that Shell Co. therefore stands

for the proposition that the Court will not apply the dual

Puerto Rico arose only in 1952, when by the Act of July 3,

1950, 64 Stat. 319, “Congress relinquished its control over

possessed by the States” (Examining Board, supra, 426 U.S.

at 597). Whether the dicta in Shell Co. would be followed to-

day in the light of this “compact” (426 U.S. at 598) with the

people of Puerto Rico is an open question. But the

tribes, unlike the government of Puerto Rico, have never been.

creations of federal sovereignty.

“after a first trial for the same offense under the

same authority,” United States v. Lanza, supra, 260

U.S. 382 (emphasis added)—does not bar prose-

cution in federal court after prosecution in a tribal

court for a lesser included offense arising from the

same acts. Indian tribes and the federal government,

like states and the federal government, are “two

sovereignties, deriving power from different sources,

capable of dealing with the same subject matter

within the same territory” (United States v. Lanza,

supra, 260 U.S. at 382). In the exercise of their

respective powers as applied to the acts of respondent

Wheeler, the Navajo Tribe and the federal govern-

ment have each determined “what shall be an offense

against its peace and dignity” (ibid.).

It might be argued that there is no independent

tribal interest in dealing with conduct such as re-

spondent’s—that the former tribal interest in deal-

ing with serious offenses involving Indians has been

displaced by Congress’ assertion of its guardianship

role through enactment of the Major Crimes Act.”

As pointed out in Keeble v. United States, supra, 412 US.

at 210, the Act was passed in 1885 out of a belief by Congress

that triba! remedies for serious offenses “were either non-

existent or incompatible with principles that Congress thought

should be controlling.” Section 3242 of Title 18, derived from

the Act, therefore provides that an Indian tried under the

Major Crimes Act “shall be tried in the same courts, and in

the same manner, as are all other persons committing any of

the [major] crimes within the exclusive jurisdiction of the

United States.” Keeble held that, under Section 3242, an In-

dian tried for a major crime is entitled to a lesser-included-

offense instruction (if warranted by the evidence) even though

But this is not so. The Major Crimes Act, as the gov-

ernment has previously noted (see United States v.

Antelope, supra, 430 U.S. at 643 n. 1), is “a carefully

limited intrusion of federal power into the otherwise

exclusive jurisdiction of the Indian tribes to punish

Indians for crimes committed on Indian land.” It was

not intended to extinguish the independent interest of

the tribes in dealing with conduct affecting relations

within the tribe, or to abrogate the long-established

policy “that the relations of the Indians, among them-

selves—the conduct of one toward another—is to be

controlled by the customs and laws of the tribe, save

when Congress expressly or clearly directs otherwise”

(United States v. Quiver, supra, 241 U.S. at 605-

606).

Section 1153 does not expressly confer jurisdiction over the

lesser offense. But Keeble expressly left undisturbed the bal-

ance of jurisdiction on the reservations which leaves to the

tribes exclusive authority to initiate prosecutions for simple

assault and similar lesser crimes by Indians; it held only that

Congress had elected to permit Indian defendants to avail

themselves of a right available to non-Indians in federal courts

(see 18 U.S.C. 1152 and 113). As the Court said (412 U.S. at

214), its holding “neither expands the reach of the Major

Crimes Act nor permits the Government to infringe the resid-

ual jurisdiction of a tribe by bringing prosecutions in federal

court that are not authorized by statute. We hold only that

where an Indian is prosecuted in federal court under the pro-

visions of the Act, the Act does not require that he be deprived

of the protection afforded by an instruction on a lesser included

offense, assuming of course that the evidence warrants such an

instruction. No interest of a tribe is jeopardized by this

decision.”

* This Court has not had occasion to decide whether the

Major Crimes Act supersedes or only supplements tribal juris-

A significant tribal interest in punishing conduct

such as respondent’s thus persists despite the asser-

tion of federal power to punish the same acts. Re-

spondent’s conduct here violated a tribal ordinance

(against contributing to the delinquency of a minor)

designed to enforce the tribe’s interest in maintaining

the internal peace and order of the Indian community

and the personal safety and dignity of its members.

Respondent therefore was properly subject to punish-

ment by the tribal court. At the same time his con-

duct may have constituted, as the federal indictment

alleged, a major federal crime (carnal knowledge

of a female under the age of sixteen). Each gov-

ernment, tribal and federal, should be entitled to give

effect to its separate interest in keeping the peace

and maintaining justice.

diction over major crimes. See Talton v. Mayes, supra; Clinton,

supra, 18 Ariz. L. Rev. at 559-560. Of course, the Indian Civil

Rights Act (25 U.S.C. 1302 (7) f now limits the sentencing

power of tribal courts so as to disable them from effectively

punishing major crimes.

„ Respondent’s conduct may also have constituted, as alleged

in the earlier federal indictment that was dismissed on

grounds unrelated to respondent’s culpability, see page 4, note

1, supra, the major federal crime of assault with intent to

rape.

2. Failure to apply the dual sovereignty principle to

successive prosecutions by tribal and federal courts

would lead to “undesirable consequences” of the

same kind that the principle, as applied in the

federal-state context, was designed to avoid.

The court of appeals’ holding in this case means

that an Indian who is convicted in tribal court of a

violation of tribal law that constitutes a lesser in-

cluded offense of one of the crimes enumerated in

the Major Crimes Act (18 U.S.C. 1153) may not

subsequently be tried in federal court for the “major

crime” arising from the same conduct. If this hold-

ing stands, respondent will have avoided prosecution

for a crime for which he was liable to be imprisoned

for up to 15 years (18 U.S.C. 2032), by pleading

guilty to a minor offense in tribal court and incur-

ring a relatively minor sentence." Indeed, if the court

of appeals is correct, then any Indian who commits

a major crime such as murder, arson, or rape, which

subjects him to federal prosecution and the possibility

of significant punishment under 18 U.S.C. 1153,

would secure immunity from such prosecution by

standing trial in Indian tribal court—or pleading

* Although the offense with which respondent is here

charged—carnal knowledge of a minor female—does not nec-

essarily entail use of force, thece was against respondent at

least a prima facie case of forcible sexual assault, as evidenced

by the original indictment for assault with intent to rape that

was dismissed on grounds unrelated to respondent’s culpability

(see page 4 and note 1, supra). If respondent indeed com-

mitted a forcible sexual assault, the sentence imposed by the

tribal court, which respondent could satisfy by paying a fine

of $150, might well be considered less than adequate punish-

ment.

guilty, as respondent did—on a minor offense that is

a lesser included offense of the major crime.“ See

Brown v. Ohio, No. 75-6933, decided June 16, 1977,

slip op. 7-8. Such a result is not only unwarranted

by precedent, as we have argued, but its foreseeable

consequences provide additional reason for this Court

to reject the conclusion of the court of appeals.

These would be much like the “undesirable con-

sequences” to which this Court pointed in Abbate v.

United States, supra, when it refused to overrule

the holding in United States v. Lanza, supra, that a

previous conviction by a State does not operate as a

constitutional bar to federal prosecution for the same

acts. As the Court said (359 U.S. at 195; see page

15, supra), “if the States are free to prosecute crimi-

nal acts violating their laws, and the resultant state

prosecutions bar federal prosecutions based on the

same acts, federal law enforcement must necessarily

be hindered,” especially where the sentence for the

federal offense is markedly greater than that for the

state offense. But, the Court continued, “no one would

suggest that, in order to maintain the effectiveness

of federal law enforcement, it is desirable completely

to displace state power to prosecute crimes based on

% Moreover, the holding of the court of appeals is not limited

to federal prosecutions under the Major Crimes Act (see Pet.

App. A, p. 8a). It would also apply, for example, to cases

where an Indian was charged with assaulting a federal officer

(18 U.S.C. 111) after having been tried in tribal court for

assault involving the same acts. See United States v. Feola,

420 U.S. 671; Stone v. United States, 506 F.2d 561 (C.A. 8),

certiorari denied, 420 U.S. 978.

acts which might also violate federal law,” a step

that “would bring about a marked change in the

distribution of powers to administer criminal jus-

tice * * *” (ibid.). Thus, the Court concluded, un-

less the federal authorities could somehow insure

that there would be no state prosecutions for par-

ticular acts that also constitute federal offenses, the

efficiency of federal law enforcement must suffer if

the Double Jeopardy Clause prevents successive state

and federal prosecutions” (ibid.).

Similarly here, federal law enforcement must neces-

sarily be hindered if the Double Jeopardy Clause

bars a federal prosecution following prosecution in

Indian tribal court for a lesser included offense.

Since by virtue of the Indian Civil Rights Act (25

U.S.C. 1302(7)) the tribal courts may impose no

sentences exceeding six months’ imprisonment, it

seems reasonable to assume that many persons who

have committed serious crimes on the reservations

would seek to avoid punishment commensurate with

the gravity of their offense by first standing trial

(or pleading guilty) in tribal court. See United

States v. Walking Crow, supra, slip op. 6.“ Under

% There are numerous reported instances in which an In-

dian defendant in federal court has been previously tried in a

tribal court for a minor offense arising out of the same acts.

See, e.g., United States v. Keeble, 459 F.2d 757 (C.A. 8), re-

versed, 412 U.S. 205; United States v. Kills Plenty, 466 F.2d

240 (C. A. 8); United States v. DeCoteau, 516 F.2d 16 (C. A.

8); United States v. DeMarrias, 441 F.2d 1304 (C.A. 8).

If the tribal conviction for a lesser included offense bars a

subsequent federal prosecution for a “major crime,” the result

the existing relationship between the Indian tribes

and the federal government, federal authorities

would be virtually powerless to prevent this result.

Federal prosecutors have no control over the institu-

tion and disposition of proceedings in tribal court.

Such proceedings often are held so swiftly that fed-

eral prosecutors may not be aware of the commis-

sion of the offense before the tribal proceeding has

been completed, much less be able to present the

matter to a grand jury and convene a trial. Here, for

instance, the incident that gave rise to the charges

against respondent occurred on October 16, 1974, and

respondent pleaded guilty to the tribal offense on

October 18, 1974 (see Pet. App. A, p. 2a).”

will contravene the congressional policy behind the Major

Crimes Act as expressed in a Senate Report on the 1968

amendment to the Act (quoted by this Court in Keeble v.

United States, supra, 412 U.S. at 211 n. 10):

“Without this amendment an Indian can commit a seri-

ous crime and receive only a maximum sentence of 6

month Since Indian courts cannot impose more than a

6-month sentence, the crime of aggravated assault should

be prosecuted in a Federal court, where the punishment

will be in proportion to the gravity of the offense.” [Quot-

ing S. Rep. No. 721, 90th Cong., Ist Sess. 32 (1967).

It might be suggested that tribal prosecutors and courts

would forego voluntarily the prosecution of major offenses, in

deference to the superior punishing power of federal courts,

but that is not an adequate answer to the problem. Tribal

authorities may well be unwilling to eschew prosecution of a

violation of tribal law and rely on the federal government

to prosecute and punish the offender. Such an abdication of

authority might be considered inconsistent with tribal inde-

pendence and the right of the tribe to define and prosecute

offenses against its own peace and dignity. Many tribes tra-

Affirmance of the decision below could thus be ex-

pected, at least in the short run, to frustrate federal

law enforcement with respect to major crimes com-

mitted by Indians in Indian country. It is reasonable

to predict, however, that Congress would act to

remedy the problem by restructuring the relationship

between the tribal and federal courts—by putting in-

to effect “a marked change in the distribution of

powers to administer criminal justice” (Abbate v.

United States, supra, 359 U.S. at 195). But the

need for such legislation would confront Congress

with a dilemma, forcing it to choose between values

that have guided federal Indian policy in recent

decades.

On the one hand, Congress might dramatically

expand the scope of tribal criminal jurisdiction over

serious crimes on the reservations, and correspond-

ingly increase the sentences that tribal courts could

impose. Yet such a choice, besides requiring careful

evaluation of the present capabilities of the multi-

farious tribal courts and law enforcement mecha-

ditionally have had distinctive concepts of justice and of the

role of judges and punishment in criminal cases (see note 25,

infra), and these unique tribal interests would be compromised

by foregoing or deferring tribal prosecution in favor of fed-

eral prosecution. Moreover, selective deferral of prosecution

might pose significant practical problems for the tribe. Tribal

prosecutors and courts would have to screen cases to deter-

mine whether the conduct involved was prosecutable under

federal law, and perhaps to determine witch the United

States Attorney was in fact willing to prosecute. The result,

even if feasible, could be a substantia] surrender of the tribe’s

own criminal justice authority.

nisms, necessarily would reverse basic policy judg-

ments made in the Major Crimes Act and in the

Indian Civil Rights Act of 1968.

On the other hand, and perhaps more likely, Con-

gress might respond to the evidence that “tribal

criminal trials [have] become protective mechanisms

for potential Major Crimes Act defendants” ” by im-

posing further limitations on the powers of the tribal

courts. These limitations could range from outright

elimination of tribal criminal jurisdiction to some

form of day-to-day federal control over the prosecu-

torial decisions of tribal authorities. Yet such in-

roads on the self-governing powers of the tribes would

undermine the prevailing policy of the federal gov-

ernment to foster tribal self-government and, in par-

ticular, an increased role for the tribal judicial sys-

tems. As the American Indian Policy Review Com-

mission has stated in its Final Report (p. 5-29) :*

The implications of [the Wheeler] decision for

jurisdiction of Indian tribes and for the power

of Congress to take corrective action through

21 Vollman, Criminal Jurisdiction in Indian Country: Tribal

Sovereignty and Defendants’ Rights in Conflict, 22 Univ. of

Kans. L. Rev. 387, 406 (1974).

22 The Commission was established by the Act of January

2, 1975, Pub. L. 93-580, 88 Stat. 1910, “to conduct a compre-

hensive review of the historical and legal developments under-

lying the Indians’ unique relationship with the Federal Gov-

ernment in order to determine the nature and scope of neces-

sary revisions in the formulation of policies and programs

for the benefit of Indians” (25 U.S.C. (Supp. V) 174 note).

The Commission’s Final Report was submitted to the Congress

on May 17, 1977.

legislation are apparent. If the doctrine of dou-

ble jeopardy is applicable to judgments of tribal

courts, there seems little doubt that either the

Courts or Congress will soon strip the tribes of

authority to act in any situation which might

potentially be prosecuted in Federal court. It is

simply not tolerable that a person can plead guilty

in tribal court to a minor offense and thereby

preclude prosecution in Federal court for a major

offense. It is essential that the separate sover-

eignty of the tribes continue to be recognized if

the jurisdictional balance between tribal and Fed-

eral courts is to be maintained.

There are approximately 71 tribal courts” cur-

rently operating, handling tens of thousands of cases

per year.“ These courts are generally viewed as

central to the preservation of Indian culture and

political identity (see, e. g., O’Neal v. Cheyenne River

Sioux Tribe, 482 F.2d 1140, 1144-1145 (C.A. 8)).

As one commentator has said (Clinton, supra, 18

Ariz. L. Rev. 557), “the tribal courts are often the

* This figure is obtained from statistics compiled by the De-

partment of the Interior as of March 18, 1977; see also Clinton,

supra, 18 Ariz. L. Rev. at 554 and n. 268. In addition to the

“tribal courts” such as the Navajo courts involved here (see

note 10, supra), there are 16 “traditional” or semi-religious

courts which also derive from the tribes’ own self-governing

powers but typically operate without written ordinances,

and 32 Courts of Indian Offenses (described above, n. 8). See

also Kerr, Constitutional Rights, Tribal Justice, and the

American Indian, 18 J. Pub. L. 311, 321-822 (1969).

All told, the Indian courts handle an estimated 80,000

cases per year. American Indian Policy Review Commission,

Final Report, p. 5-36.

single most important vestige of tribal sovereignty

on the reservations.”

The American Indian Policy Review Commission

has stressed the importance of the tribal courts to the

future of tribal self-government.” The Commission

finds in its Report (p. 5-42; see note 22, supra) that

tribal courts, though varying greatly in individual

performance, on the whole “are evolving institutions

that are capable of fair and efficient justice.” The

Report recommends that Congress take steps to pro-

mote their “maintenance and development,” a process

that “will require tribal experimentation and time.”

The decision of the court of appeals, however, threat-

ens any efforts to enhance the capability and author-

ity of the tribal courts.

The rule of the decision below would thus produce,

if not an unacceptable hindrance of federal law en-

Several justifications have been advanced for maintaining

an independent system of tribal courts. Effective application

of Indian law, which in comparison to federal and state sys-

tems shows a stronger inclination to “restitutive” rather than

“retributive” justice, may well call for a specialized judge

capable of performing the arbitral duties of the tribal elder.

Many Indians also feel that they will receive more evuitable

treatment in Indian courts than in others. Furthermore, many

Indians see tribal justice as reflecting a unique concern for

the individual defendant, as evidenced, for example, by the

relaxed procedures for granting pre-trial release on personal

recognizance. Note, The Indian: The Forgotten American, 81

Harv. L. Rev. 1818, 1834-1887 (1968). See Hearings on the

Constitutional Rights of the American Indian, S. Res. 53,

before the Sub-Committee on Constitutional Rights of the

Senate Committee on the Judiciary, 87th Cong., ist Sess.

(Part 1) 15-16 (1961).

forcement authority, an imperative that Congress re-

structure the balance of criminal-justice powers be-

tween the federal government and the tribes in a way

that sacrifies some important value of present federal

policy. These “undesirable consequences” provide

strong ground, as they did in Abbate, for applying

the dual sovereignty principle to conclude that the

Double Jeopardy Clause is no bar to the federal prose-

cution in this case.

C. Even If Tribal Courts Are Viewed As Arms of the

Federal Sovereign, the Double Jeopardy Clause Does

Not Bar Prosecution for a Major Crimes Act Felony

in a Federal District Court After Conviction of a

Lesser Included Offense Under Tribal Law in a Tribal

Court.

The decision of the court of appeals rests on the

assumption that, unless the dual sovereignty principle

applies, the Double Jeopardy Clause inevitably bars

prosecution of a defendant who has been convicted-bge

ei of a lesser included offense based

on the same acts. The decision last Term in Brown

v. Ohio, supra, “establishes the general rule that the

Double Jeopardy Clause prohibits a State or the Fed-

eral Government from trying a defendant for a

greater offense after it has convicted him of a lesser

included offense” (Jeffers v. United States, No. 75-

1805, decided June 16, 1977, plurality opinion, slip

op. 12). But that “general rule” is not absolute; it

“does have some exceptions” (id. at 13). We submit

that, even if the tribal and federal courts are viewed

as arms of the same sovereign and hence as subject

to the general rule of Brown v. Ohio,” a federal prose-

cution following a tribal prosecution in the circum-

stances of this case constitutes an exception to that

rule and is not barred by the Double Jeopardy Clause.

1. The plurality opinion in Jeffers noted three ex-

ceptions to the bar against successive prosecutions.

One arises “when all the events necessary to the

greater crime have not taken place at the time the

prosecution for the lesser is begun” (slip op. 13), as

in Diaz v. United States, 223 U.S. 442. A second

may exist “when the facts necessary to the greater

** We would also suggest that the Double Jeopardy Clause

may not be such a wooden instrument that it must either be

wielded with full force as in Brown, or set aside entirely under

the dual sovereignty principle. There may be a middle range

of dual-authority cases where the Clause applies in its essen-

tials, but where its impact on prosecution for a greater offense

after conviction for a lesser included offense is not subject to

the analysis of Brown. In Brown, the successive prosecutions

by the municipality and the county were “the acts of a single

sovereign under the Double Jeopardy Clause” (slip op. 3 n. 4)

not only in the sense that both prosecuting authorities derived

their power from the State of Ohio, see Waller v. Florida, 397

U.S. 387, but also in the sense that both prosecutions were

laid under the same statute, the Ohio Revised Code (see

Brown, slip op. 1-2). In such a case it is true that

* * * the Fifth Amendment double jeopardy guarantee

serves principally as a restraint on courts and prose-

cutors. The legislature remains free under the Double

Jeopardy Clause to define crimes and fix punishments; but

once the legislature has acted courts may not impose more

than one punishment for the same offense and prosecutors

ordinarily may not attempt to secure that punishment

in more than one trial. [id. at 4.]

Such freedom for the exercise of legislative prerogatives is

not preserved, however, where the Double Jeopardy Clause is

were not discovered despite the exercise of due dili-

gence before the first trial” (id. at 14; accord, Brown

v. Ohio, supra, slip op. 8 n. 7). [Another exception”

was recognized in Jeffers itself, covering cases where

“the defendant expressly asks for separate trials on

the greater and the lesser offenses, or, in connection

with his opposition to trial together, fails to raise the

issue that one offense might be a lesser included of-

fense of the other” (slip op. 14). And Mr. Justice

Brennan in his concurring opinion in Ashe v. Swen-

son, 397 U.S. 436, stated that “[a]nother exception

would be necessary if no single court had jurisdiction

of all the alleged crimes” (id. at 453 n. 7).

general rule of Brown v. Ohio, prosecution for a

Clause than the one adopted in Brown v. Ohio.

offense remains permissible in exceptional circum-

stances. Such circumstances exist, as the listed excep-

tions indicate, when there is a compelling reason why

the greater offense could not have been tried, or was

not tried, simultaneously with the lesser offense.

Given such circumstances, there are measures that

can be invoked, as the Court explained in Diaz, to

permit the second trial but nonetheless assure that

the subsequent prosecution for the greater offense

does not put the defendant “twice * * * in jeopardy”

for the lesser offense on which he has previously been

convicted.”

2. The circumstances of this case either bring it

within one of the recognized exceptions to the rule

barring successive prosecutions or warrant recogni-

tion of a further exception. As we have already

discussed (pp. 37-38, supra), Indian tribes and

tribal courts exercise criminal jurisdiction quite

„In Diaz the Court approved a prosecution for murder

where, after the defendant had been convicted of assault and

battery, the victim died and the homicide charge was brought.

The Court explained (223 U.S. at 449) that the defendant had

not been in jeopardy for the homicide at the trial for assault

and battery and that “[a]ll that could be claimed for [the

jeopardy of that trial] was that it protected the accused from

being again prosecuted for the assault and battery, and there-

fore required that the latter be not treated as included, as a

lesser offense, in the charge of homicide, as otherwise might

have been done * * *.” Double punishment for the same offense,

which the Double Jeopardy Clause also prohibits, can be

avoided in such circumstances by taking into account, when

fixing the sentence on the greater oifense, any sentence already

imposed for the lesser offense. See Note, Twice in Jeopardy,

75 Yale L.J. 262, 289 n. 128 (1965).

independently of federal prosecutors and the fed-

eral district courts. Even if this Court were to

conclude that, as a conceptual matter, tribal courts

derive their power from the federal sovereign, it is

nevertheless the fact that, under existing arrange-

ments, tribal courts operate wholly apart from fed-

eral district courts and tribal prosecutors are in no

respect under the supervision or control of United

States Attorneys. There are, as we have stressed,

legitimate and compelling reasons for this arrange-

ment: independent tribal courts are vital components

of tribal self-government, and their contribution to

the preservation of Indian culture and identity is

essential to major policy objectives of the federal

government.

There are also legitimate and compelling reasons

why, given the unique status of Indian tribes and

their courts, the need may arise for successive prose-

cutions by the tribe and the federal government aris-

ing from the same acts. The sentencing authority of

tribal courts is so limited by the Indian Civil Rights

Act that they cannot adequately punish defendants

who have committed serious crimes. Yet the tribal

courts are empowered to try such defendants, And

they may often be expected to do so, as the Navajo

court did in this case, before a United States At-

torney would be able to secure an indictment insti-

tuting a prosecution in the federal district court (or

even learn of the occurrence of the offense).

Such circumstances would seem to bring this case

within the exception to the bar on successive prose-

eutions, suggested both by the plurality in Jeffers

(slip op. 14) and the Court in Brown v. Ohio (slip

op. 8 n. 7), applicable where the prosecution “is un-

able to proceed on the more serious charge at the

outset because the additional facts necessary to sus-

tain that charge * * * have not been discovered

despite the exercise of due diligence” (ibid.). In such

circumstances, even after conviction and punishment

by the tribal court, it is reasonable for the United

States Attorney to seek a penalty commensurate with

the defendant’s crime as provided for by federal law.

This federal prosecution would not be an attempt

to harass the defendant, nor an instance of the

“repeated attempts to convict an individual for an

alleged offense” that the Double Jeopardy Clause was

intended to prohibit (Green v. United States, 355

U.S. 184, 187). On the contrary, where the de-

fendant has committed a serious felony that has not

been adequately punished in tribal court, the subse-

quent federal prosecution by the United States At-

torney would be not only a legitimate exercise of his

separate prosecutorial authority, but also a measure

compelled by the congressional policy reflected in

the Major Crimes Act.” In the unique circumstances

presented by the independence and the sharply lim-

* See Keeble v. United States, supra, 412 U.S. at 210-211

and n. 10, where the Court noted the “congressional purpose

* * * evident in the most recent amendment to the [Major

Crimes] Act” as reflected in a passage from a Senate Report

(S. Rep. No. 721, 90th Cong., Ist Sess. 832 (1967)), quoted in

note 19, supra.

ited sentencing power of Indian tribal courts,” then,

an exception to the rule of Brown v. Ohio should be

recognized to allow a subsequent federal prosecution

such as was attempted in this case.”

3. Moreover, the subsequent federal prosecution in

the circumstances of this case falls within the excep-

tion that Mr. Justice Brennan in Ashe v. Swenson,

supra, 397 U.S. at 453 n. 7, said “would be neces-

sary if no single court had jurisdiction of all the

alleged crimes.” Respondent was not put in jeop-

ardy of conviction of carnal knowledge during the

proceedings against him in tribal court. Carnal

knowledge was not charged in the criminal complaints

filed against him in the name of the Navajo Tribe

(A. 7-8), nor could it have been; tribal courts have

no jurisdiction to try charges of the federal offense

* Cf. Middendorf v. Henry, 425 U.S. 25.

* In 18 U.S.C. 1152, which derives from statutes passed in

1834 and 1854 (4 Stat. 729, 733; 10 Stat. 269, 270; see p. 22,

supra), Congress has provided that, in general, “the general

[criminal] laws of the United States * shall extend to the

Indian country.” The statute provides an exception, however,

for cases in which “any Indian committing any offense in the

Indian country * * * has been punished by the local law of the

tribe * * In contrast, the Major Crimes Act (18 U.S.C.

1158), which was enacted in 1885 (23 Stat. 362, 385) and ex-

tends federal jurisdiction to certain enumerated crimes com-

mitted by Indians in Indian country, contains no such excep-

tion. The Major Crimes Act thus reflects a congressional judg-

ment that the enumerated offenses should be subject to trial

in federal court whether or not the defendant has previously

been convicted in tribal court—a judgment reconfirmed as

recently as the 1968 amendment to the Act, see notes 19 and

28, supra.

of carnal knowledge under 18 U.S.C. 2032, and the

Navajo Tribal Code contains no such offense.” Re-

spondent’s trial in federal district court would there-

fore be his first jeopardy of conviction of carnal

knowledge.

At the same time, respondent at his federal trial

would not again be in jeopardy for the offense of

contributing to the delinquency of a minor. This of-

fense was not charged in the indictment filed in fed-

eral district court, nor could it have been; federal

courts have no jurisdiction to try tribal offenses,

and where as here the alleged crime is committed by

an Indian against another Indian, federal district

courts have no jurisdiction over any indictment un-

less the offense is one of those enumerated in the

Major Crimes Act (18 U.S.C. 1153; see 18 U.S.C.

1152). Contributing to the delinquency of a minor

is not one of the enumerated offenses. Respondent

therefore would not be placed in a second jeopardy

for that offense in a federal trial on the carnal

knowledge charge,” though he would, of course, be

n Although it is open to dispute whether Indian tribes can

prosecute major crimes (see note 15, supra), the Navajo

Tribe has chosen not to do so. In the Tribal Council Resolution

adopting its law and order code (CJA-1-59), the Tribe sta

that “[i]t is not the intent of this resolution to usurp or inter

fere with enforcement of the * * * Major Crimes Law * * *”

(see historical notes at 17 Navajo Tribal Code 1).

* The conclusion that this case falls within the exception

where “no single court had jurisdiction of all the alleged

crimes” is not inconsistent with Keeble v. United States, supra.

protected against cumulative punishment for the two

offenses arising from the same acts.”

In sum, the unique circumstances presented by the

dual jurisdiction of federal district courts and Indian

tribal courts require, consistently with the recognized

exceptions to the bar on successive prosecutions for

The Court there held (412 U.S. at 214) that if “the evidence

warrants such an instruction,” a defendant prosecuted under

the Major Crimes Act may avail himself of “the protection

afforded by an instruction on a lesser included offense” despite

the district court’s lack of independent jurisdiction over that

offense. For several reasons, Keeble does not establish, for

purposes of the exception to the bar on successive prosecu-

tions, that the trial in the federal court would place respond-

ent again in jeopardy for the lesser included tribal offense.

First, the lesser-included-offense charge presumably would be

derived from state or federal rather than tribal law. (Here,

711.) Second, the facts as proved at the federal trial may

not warrant the instruction, which need not be given

“the evidence would permit a jury rationally to

defendant] guilty of the lesser offense and acquit him of the

greater” (412 U.S. at 208). Third, it would seem in any event

that, consistently with Diaz v. United States, supra, 223 U.S.

at 449, the Double Jeopardy Clause would protect the defend-

ant from conviction or punishment on a verdict of guilty re-

turned by the jury in federal court on the lesser included

trial might properly be regarded as a waiver of any right he

would otherwise have not to be subjected to a second trial on

that particular offense. Cf. Jeffers v. United States, supra,

slip op. 14.

* See note 27, supra.

greater and lesser included offenses, that respond-

ent’s conviction in tribal court of the tribal offense

of contributing to the delinquency of a minor not

bar his subsequent prosecution in federal district

court for the federal crime of carnal knowledge.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

WabE H. McCrez, IR.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

STEPHEN R. BARNETT,

Deputy Solicitor General.

STEPHEN L. URBANCZYK,

Assistant to the Solicitor General.

JEROME M. FEIT,

MICHAEL W. FARRELL,

Attorneys.

DECEMBER 1977.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.