Petition for Writ of Certiorari — Long v. United States

Supreme Court brief2003

Ask Donna

What actually matters in this document.

Text

Supreme Ceurt, U.S.

FILED

Y 0.218 01 JUN 102003

0. 02-___

In The

Supreme Court of the Anited States

FRANK LONG,

Petitioner,

7 V.

UNITED STATES OF AMERICA,

— ~ Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

BRIAN P. MULLINS

Counsel of Record

DEAN A. STRANG

FEDERAL DEFENDER SERVICES

OF EASTERN WISCONSIN, INC.

517 East Wisconsin Avenue

Milwaukee, Wisconsin 53202

(414) 221-9900

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

By Congressional act, the Menominee Tribe lost its

power to prosecute tribal members for violating tribal law

in 1961, but regained that power by a subsequent act of

Congress in 1973. The petitioner was charged by tribal

and federal prosecutors, in that order, with the same

offense in 2001. The question presented is:

Whether a federally recognized Indian tribe, whose

present power to prosecute tribal offenses was established

by an act of Congress, prosecutes as a sovereign separate

from the federal government for purposes of the dual

sovereignty exception to the Fifth Amendment’s Double

Jeopardy Clause.

LIST OF PARTIES

All parties appear in the caption of the case on the

cover page.

iii

TABLE OF CONTENTS —

Page

QUESTION PRESENTED FOR REVIEW................. i

ee Ee Fie PEN EE BEE cess twedessncscccesccesoescossoneneves v

I IE cic as dshacsuinsndsenysssncenevanvensunswenvesees 1

I oad cassinnsenmnepednnbenantiindvedaacenntonty 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

NEE EA a 1

STATEMENT OF THE CASE. ........scssscscsosccescoscccceeces 3

REASONS FOR GRANTING THE WRIT ................. 7

A. This Court Has Specifically Reserved Decid-

ing the Question Presented................sccsseseeees 7

B. The Circuits Are Divided Over the Question

id shin tale leak scandal puiedentenbeneneesions 8

C. The Question Presented Is of National

Importance to Law Enforcement and Tribal

NE vi ncchesrvabtanchisetvaascavhivsseikbcindasveshensensties 10

SEEMED ccncsersvsissewensuvenessssieeseedessesenvisnsoness ais 11

INDEX TO APPENDICES

APPENDIX A (Opinion Below, United States Court

of Appeals for the Seventh Circuit) ...................0000 App. 1

APPENDIX B (Opinion, United States District

Court for the Eastern District of Wisconsin)........ App. 19

APPENDIX C (Indictment) ........:..cccscsccssssssssssseesseees App. 39

TABLE OF AUTHORITIES

Page

CASES

Duro v. Reina, 495 U.S. 676 (1990) ............cccssssecceeeeeceeees 8,9

Menominee Tribe of Indians v. United States, 391

Ue, GG Cae cavitnnncrcesnacsnnitssneniosaveitamadiedatpiaaiiots 4

United States v. Enas, 255 #.3d 662 (9th Cir. 2001)

Gti RIED .cisscscicsevssscicsecenbsiieniehiaidstebenniaidaciaainaamabia: 9

United States v. Lara, 324 F.3d 635 (8th Cir. 2003)

GOI III sen vavssenrsensinentcaieneniiadeiainaaidabiaiiae 8,9, 11

United States v. Long, 183 F. Supp.2d 1106 (E.D.

Wis. 2002), rev’d, United States v. Long, 324 F.3d

GTS CO GR BG taterictntcthcntatitibeie mannii 6

United States v. Long, 324 F.3d 475 (7th Cir.

SD sccicvinecivovussenndiiciiiciimiiasiamcitiesdindiaea i aeeaes 3, 6, 7, 8, 9, 10

United States v. Weaselhead, 156 F.3d 818 (8th

Cir.), vacated by equally divided court, 165 F.3d

1200 (Gtia Cie. 1908) (enn HORS) q..cerccsscoveccvecsscacenseveszeees 9,10

United States v. Wheeler, 435 U.S. 313 (1978)............ 6, 7, 8

CONSTITUTIONAL AND STATUTORY PROVISIONS

if Go” FEE & Renae Ton shia eNe Os 1

BE URL B Giidttiinssttsichitiicticinanbieinndmeaal 5

SE UA, Fee re ikcrenrsscinisesepstianipnaniatsemminaniesenonicensiaas 5

Be GE Se FOE Ie iectishicvetenienintctinalivssareasiartes pcaiebivmuiluaidie 5

Fiske ssineniseniiesidisicnitiieaama 5

Ts Ge Fe BE hetithnevevnsecmnssctcnieeeneninamissinaimaaas 5

UF. Be SFOS sniisinsiininesinticlemichbieemniasmainia 5

BE TIA. Fe FON FO vn scensisisnracessviinninnerinntenniinsonnvenncnminabont 5

TABLE OF AUTHORITIES — Continued

Page

BE UO, BB GEER EA ccesesvinarsrsicasesersccrenecsenintninsnincenniiial 5

BE LEG, § DR ceresecesrsesnssccivndnimsstensinsatiaansiuaiiipeaniiaiiaiel 2,5

BS UB.C. Fh GOUGING snreveicsvocsensvnnssssnsecionsesentetiilianalaninbliaas 5

SE UE.G. Gp SR ssicevecsacenseevesssscensssnacsasioenanmnadienn 5

SE UB... FE TRG SEES vcccenvseceissesintsianerenaenanninn 5

SS U.G.C. GB TR ROH e ccercaseinnicetsthinniavincneisniiiain 5

BE US.C. FF TOO ta- TID .q..crecessevccssosevsenscenseonvessscssvtseees 5

BE UGC. & REDE icecccececsevessreseseenssantorsaeeeiaeaaae 3, 8

BE UTC. § TB, ncescesescsoreciercenssanseninnesintaeiiniienninataaiaiis 1

Menominee Termination Act of 1954, Pub. L. 83-

399, ch. 303, 68 Stat. 250 (codified as amended at

SS UBC. Be GR Cees iencccacticssceneestictciennessainies 2,3

Pub. L. 83-661, ch. 910, 68 Stat. 795 (1954)... eeeeeee 4

Pub. L. 83-280, 67 Stat. 588 (1953) (codified in part

ot 16 US. © BGG issincaviiinees ueiitigseibuhail 3, 4

SSUR.. OR. FE. FF BB ecersssenecessnunievssnsteunsinanaeeeesaaeenaaae eau 11

OTHER AUTHORITIES

Felix S. Cohen, HANDBOOK OF FEDERAL INDIAN LAW

(ROGER G0. } < cvvisersesecsacesevscinsenssitvensiaedianiaaeeeneeana 4

Stephan M. Tourtillot-Grochowski, Profile, Me-

nominee Tribal Court, in ON COMMON GROUND: A

MEETING OF STATE, FEDERAL AND TRIBAL COURTS

CBRae, LoTR, BIBS ncciscavsscincsssascntensenanieiiaiannan mars 3

U.S. CENSUS BUREAU, THE AMERICAN INDIAN AND

ALASKA NATIVE POPULATION: 2000 (2002)............cce00eeeee 10

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that this Court issue a

writ of certiorari to review the judgment below.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit appears at Appendix A to the Petition

and is reported at 324 F.3d 475.

The opinion of the United States District Court for the

Eastern District of Wisconsin appears at Appendix B to

the Petition and is reported at 183 F. Supp.2d 1106.

JURISDICTION

The United States Court of Appeals for the Seventh

Circuit decided Petitioner’s case on March 20, 2003.

Neither party filed a petition for rehearing.

Petitioner invokes this Court’s jurisdiction under 28

U.S.C. § 1254(1).

€é

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. U.S. Const. amend. V, cl. 2, provides:

nor shall any person be subject for the same offence

to be twice put in jeopardy of life or limb....

2. The Menominee Termination Act of 1954, Pub. L.

83-399, ch. 303, 68 Stat. 250 (codified as amended at 25

U.S.C. §§ 891-902 (1964)), stated, in pertinent part:

Be it enacted by the Senate and House of Repre- |

sentatives of the United States of America in

Congress assembled, That the purpose of this Act

is to provide for orderly termination of Federal

supervision over the property and members of

the Menominee Indian Tribe of Wisconsin.

[AJll statutes of the United States which affect

Indians because of their status as Indians shall

no longer be applicable to the members of the

tribe, and the laws of the several States shall ap- -

ply to the tribe and its members in the same

manner as they apply to other citizens or persons

within their jurisdiction.

3. Title 25, United States Code, Section 903a(b)

‘provides:

Subchapter XL of this chapter is hereby repealed

and there are hereby reinstated all rights and

privileges of the tribe or its members under Fed-

eral treaty, statute, or otherwise which may have

been diminished or lost pursuant to such sub-

chapter.

4. Title 25, United States Code, Section 903a(c)

provides:

Nothing contained in this subchapter shall di-

minish any rights or privileges enjoyed by the

tribe or its members now or prior to June 17,

1954, under Federal treaty, statute, or otherwise,

which are not inconsistent with the provisions of

this subchapter.

5. Title 25, United States Code, Section 1301(2)

provides:

“powers of self government” .. . means the inher-

ent power of Indian tribes, hereby recognized and

affirmed, to exercise criminal jurisdiction over all

Indians.

STATEMENT OF THE CASE

1. The Menominee Tribe’s reservation in northeast

Wisconsin was created by the Treaty of Wolf River in 1854.

A Menominee justice system- existed for nearly the next

100 years. See United States v. Long, 324 F.3d 475, 477

(7th Cir. 2003) (citing Stephan M. Tourtillot-Grochowski,

Profile, Menominee Tribal Court, in ON COMMON GROUND:

A MEETING OF STATE, FEDERAL AND TRIBAL COURTS § 2

(Mar. 11-12, 1999)).

In 1953, Congress enacted Public Law 83-280, 67 Stat.

588 (1953) (codified in part at 18 U.S.C. § 1162), which

gave Alaska, California, Minnesota, Nebraska, Oregon and

Wisconsin jurisdiction to prosecute crimes committed by or

against Indians in “Indian country.” The original statute

exempted the Menominee Tribe.

But in 1954, as part of the federal government’s policy

of assimilating Indian tribes into mainstream society,

Congress enacted the Menominee Termination Act, Pub. L.

83-399, ch. 303, 68 Stat. 250 (1954) (codified as amended

at 25 U.S.C. §§ 891-902 (1964)).' The Termination Act

stated: “[AJll statutes of the United States which affect

Indians because of their status as Indians shall no longer

be applicable to the members of the tribe, and the laws of

the several States shall apply to the tribe and its members

in the same manner as they apply to other citizens or

persons within their jurisdiction.” 68 Stat. 252. Two

months later, Congress amended Public Law 83-280 to

remove the Menominee exemption and extend the state of

Wisconsin’s jurisdiction to crimes committed by Indians on

the Menominee Reservation. Pub. L. 83-661, ch. 910, 68

Stat. 795 (1954). Courts read Public Law 280 in pari

materia with the Menominee Termination Act. Menominee

Tribe of Indians v. United States, 391 U.S. 404, 411 (1968).

Read together, Public Law 280 and the Menominee Termi-

nation Act eliminated the Menominee Tribe’s power to

enact and enforce criminal law on its reservation and gave

that power exclusively to the state of Wisconsin.

Nineteen years later, in 1973, Congress enacted the

Menominee Restoration Act, which repealed the Termina-

tion Act. The Restoration Act “reinstated all rights and

privileges of the tribe or its members under Federal treaty,

* Also terminated were the Klamath Tribe of Oregon; 61 tribes and

bands of Western Oregon; the Alabama and Coushatta Tribes of Texas;

the Mixed Blood Utes of Utah; the Southern Paiute Tribe of Utah; the

Lower Lake Rancheria of California; the Wyandotte of Oklahoma; the

Peoria of Oklahoma; the Ottawa of Oklahoma; the Coyote Valley

Rancheria of California; 37 to 38 California Rancherias under the

California Rancheria Act; the Catawba Tribe of South Carolina; and the

Ponca Tribe of Nebraska. See Felix S. Cohen, HANDBOOK OF FEDERAL

INDIAN Law 811 (1982 ed.)

statute, or otherwise” which may have been lost pursuant

- to the Termination Act. 25 U.S.C. § 903a(b).?

In 1976, the state of Wisconsin retroceded its criminal

jurisdiction over the Menominee Reservation back to the

federal government. A Menominee Tribal Court was estab-

lished in 1979.

2. Petitioner stole a pick-up truck on the Menominee

Reservation in Keshena, Wisconsin, in April 2001. He pled

no contest to theft in the Menominee Tribal Court and was

sentenced to 120 days in tribal jail.

Later that year, a federal grand jury sitting in the

Eastern District of Wisconsin issued an indictment charg-

ing petitioner with the same theft, contrary to 18 U.S.C.

§ 1153(a) (the Indian Major Crimes Act, which grants

federal jurisdiction over 14 enumerated crimes committed

on reservation lands by Indians, including larceny).

3. Petitioner moved to dismiss the indictment based

on double jeopardy. The district court granted Petitioner’s

* The following tribes also had federal recognition restored: the

Klamath Tribe of Oregon, 25 U.S.C. §§ 566-566h; the Siletz Tribe of

Oregon, 25 U.S.C. §§ 711-711f; the Confederated Tribes of Coos, Lower

Umpqua and Siuslaw of Oregon, 25 U.S.C. §§ 714-714f; the Coquille

Tribe of Oregon, 25 U.S.C. §§ 715-715g; the Alabama and Coushatta

Tribes of Texas, 25 U.S.C. §§ 731-737; the Paiute Indians of Utah, 25

U.S.C. §§ 761-768; the Wyandotte, Peoria, Ottawa and Modoc Tribes of

Oklahoma, 25 U.S.C. §§ 861-861c; the Catawba Tribe of South Carolina,

25 U.S.C. §§ 941-941c; the Ponca Tribe of Nebraska, 25 U.S.C. §§ 983-

_ 983h; the Ysleta del Sur Pueblo Tribe of Texas, 25 U.S.C. §§ 1300g-

1300g-7; the Auburn Tribe of California, 25 U.S.C. §§ 13001-13001-7;

and the Graton Rancheria of California, 25 U.S.C. §§ 1300n-1300n-6.

motion to dismiss. The district court noted that under

United States v. Wheeler, 435 U.S. 313, 323 (1978), tribes

retain sovereign powers until Congress acts. But, the

district court concluded that Congress did act to affect the

Menominee Tribe’s sovereign powers:

In fact, Congress acted twice, first in 1954 by

terminating the Tribe’s sovereignty and, second,

in 1973 by reinstating it. To conclude in the face

of these acts that the Tribe’s power to prosecute

defendant is inherent rather than delegated

would be to collapse and render meaningless the

distinction between inherent and delegated

power, which is the linchpin of the Wheeler deci-

sion. When Congress passed the Restoration Act

in 1973, it conferred power on a Tribe that had

none. If this was not a delegation of power it is

difficult to imagine what would be.

United States v. Long, 183 F. Supp.2d 1106, 1113 (E.D.

Wis. 2002), rev’d, United States v. Long, 324 F.3d 475 (7th

Cir. 2003).

The district court held that the source of the Menomi-

nee Tribe’s power to prosecute tribal crimes was the

Restoration Act of 1973; therefore, “the dual sovereignty

doctrine does not apply in the present case because the

Tribe and the United States are nominally different

prosecuting entities whose authority stems from the same

source,” and Petitioner’s prosecution in federal court for

the “same offence” violated double jeopardy. Id. at 1115.

4. The United States Court of Appeals for the Sev-

enth Circuit reversed. That court described the issue as a

“difficult question of first impression in a long line of cases

dealing with Indian sovereignty beginning as early as the

days of John Marshall,” 324 F.3d at 476, that in turn

raised “complex questions about the scope of the Double

Jeopardy Clause, tribal sovereignty, and Congress’s power

to regulate Indian tribes.” Jd. at 478.

The Seventh Circuit characterized the source of the

Menominee’s power as “debatable” because of the series of

legislative acts that altered the Menominee’s status as a

tribe. Jd. at 480. But the court determined thet the Resto-

ration Act was an “effort by Congress to place the Me-

nominee back in the position they held before the

Termination Act.” Jd. at 482. Because the tribe exercised

its own sovereign power, the court concluded, the dual

sovereignty exception to the Double Jeopardy Clause

allowed sequential tribal and federal prosecutions. Id.

5. Petitioner timely seeks a writ of certiorari.

REASONS FOR GRANTING THE WRIT

A. This Court Has Specifically Reserved Deciding

the Question Presented

This case presents the question specifically reserved

by this Court in United States v. Wheeler, 435 U.S. 313

(1978). In Wheeler, the Court held that a prosecution by

the federal government, subsequent to a prosecution by

the Navajo Nation for the same behavior, did not violate

double jeopardy. Jd. at 327-28. The Court emphasized that

the power to punish offenses against tribal law committed

by tribal members was part of the Navajos’ “primeval

sovereignty,” that this power had never been relinquished

by treaty or otherwise, and that this power was not attrib-

utable to any delegation to the tribe of federal authority.

Id. at 328.

But Wheeler left open whether a tribe that lost its

sovereign power to try tribal criminals and then regained

it by act of Congress would be an arm of the federal

government and therefore not a separate sovereign for

double jeopardy purposes: “That interesting question is

not before us, and we express no opinion thereon.” 435

U.S. at 328 n.28. But that “interesting question” is pre-

sented squarely in this case.

B. The Circuits Are Divided Over the Question

Presented

A new conflict exists among the federal courts of

appeals regarding the principle around which the reserved

question in Wheeler revolves: whether a tribe exercises

congressionally delegated power when Congress grants a

power to a tribe that did not exist before Congress acted.

The Court of Appeals for the Seventh Circuit held

below that if Congress chooses to place a terminated tribe

back in the position it held before the Termination Act, the

source of those restored powers remains the tribe’s inher-

ent sovereignty. Long, 324 F.3d at 482.

Just four days later, in contrast, a 7-4 en banc panel of

the Court of Appeals for the Eighth Circuit held that —

“[oJnce the federal sovereign divests a tribe of its particu-

lar power, it is no longer an inherent power and it may

only be restored by delegation of Congress’s power.” United

States v. Lara, 324 F.3d 635, 639 (8th Cir. 2003) (en banc).

At issue in Lara was an amendment to the Indian Civil

Rights Act (“ICRA”), 25 U.S.C. § 1301(2), which defined

tribal powers of self-government as including the inherent

power to exercise criminal jurisdiction over all Indians. The

amendment was enacted in reaction to this Court’s decision

in Duro v. Reina, 495 U.S. 676, 688 (1990), in which the

Court held that a tribe’s inherent sovereignty did not provide

it with authority to exercise criminal jurisdiction over

nonmember Indians.

The Eighth Circuit concluded that a tribe whose power

to prosecute a nonmember Indian derived from an amend-

ment to the ICRA exercised congressionally delegated power.

Lara, 324 F.3d at 640. As a result, the court held that the

federal and tribal prosecutions were not undertaken by

separate sovereigns and the defendant’s federal prosecu-

tion subsequent to a tribal prosecution for the same

offense violated double jeopardy. Id. :

Lara conflicts directly with the Ninth Circuit’s en

banc decision in United States v. Enas, 255 F.3d 662, 673

(9th Cir. 2001) (en banc). Enas held that this Court’s decision

in Duro was based on federal common law, which Congress

could override by amending the ICRA. And because Congress

had the ability to grant a tribe the inherent power to prose-

cute nonmember Indians, a federal prosecution could occur

subsequent to a tribal prosecution without violating double

jeopardy because the tribe did not exercise delegated federal

power. Id. at 675. f

The Seventh Circuit distinguished Long from Enas

and United States v. Weaselhead, 156 F.3d 818 (8th Cir.),

vacated by equally divided court, 165 F.3d 1209 (8th Cir.

1999) (en banc).* The court of appeals here observed that

* When Long was decided, Weaselhead was the controlling author-

ity in the Eighth Circuit on the double jeopardy impact of the amend-

ment to the ICRA that recognized an inherent power of tribes to

prosecute all Indians, not just tribal members. Lara sub silentio

overrules Weaselhead, petitioner believes.

the question in Enas and Weaselhead was whether Con-

gress could create inherent sovereign powers that the

Supreme Court had determined Indian tribes did not

possess, while Long concerned the double jeopardy ramifi-

cations when Congress restores a power it had previously

taken from the tribe. Long, 324 F.3d at 483. But this is a

distinction with little difference. The Seventh, Eighth and

Ninth Circuits all address the same basic question: when a

tribe derives its present power solely from an act of Con-

gress, may that power be classified as inherent for double

jeopardy purposes?

C. The Question Presented Is of National Impor-

tance to Law Enforcement and Tribal Members

This case presents issues of national importance. The

three circuits directly implicated by this petition contain

44 percent of the nation’s people who classify themselves

as “American Indian” or “Alaska Native” for. purposes of

the United States Census. See U.S. CENSUS BUREAU, THE

AMERICAN INDIAN AND ALASKA NATIVE POPULATION: 2000,

at 5 (2002) (of the 2.5 million people who classified them-

selves as only “American Indian” or “Alaska Native” on the

2000 Census, 1.1 million lived in the states that compose

the Seventh, Eighth and Ninth Circuits).

Federal and tribal law enforcement officials, as well as

tribal members themselves, have a compelling interest in

clarification of whether a tribe exercises inherent or

delegated power when the power presently exists solely by

act of Congress. As the decisions of the federal appellate

courts now stand, law enforcement and tribal members are

subject to inconsistent reasoning in the Seventh, Eighth

and Ninth Circuits.

If the Solicitor General petitions for a writ of certio-

rari in Lara, this Court might consolidate that case with

this one pursuant to Sup. CT. R. 27.3. Both cases merit

review on writ of certiorari.

CONCLUSION

Petitioner prays that the Court grant a writ of certio-

rari and set this case for briefing and plenary considera-

tion.

Respectfully submitted,

FRANK LONG, Petitioner

BRIAN P. MULLINS

Counsel of Record

DEAN A. STRANG

FEDERAL DEFENDER SERVICES OF

EASTERN WISCONSIN, INC.

June 2003

App. l

APPENDIX A

324 F.3d 475

United States Court of Appeals

Seventh Circuit.

UNITED STATES of America, Plaintiff-Appellant,

Frank LONG, Defendant-Appellee.

No. 02-1473.

Argued Sept. 6, 2002.

Decided March 20, 2003.

Richard A. Friedman (argued), DOJ, Crim. Div., App.

Sec., Washington, DC, for Plaintiff-Appellant.

Brian P. Mullins (argued), Federal Defender Services

of Eastern Wisconsin, Inc., Milwaukee, WI, for Defendant-

Appellee.

Before POSNER, EASTERBROOK, and DIANE P.

WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

The narrow question in this case is whether Frank

Long, a member of the Menominee Tribe of Wisconsin, can

be prosecuted by the United States for the same conduct

that was the subject of an earlier tribal prosecution. In

order to resolve that issue, however, we must consider the

scope of the sovereignty the Menominee Tribe currently

enjoys. If the Menominee prosecution is properly charac-

terized as one flowing from independent sovereign powers,

then there is no Double Jeopardy bar to the subsequent

federal prosecution. If, on the other hand, the Menominee

App. 2

were acting solely under powers delegated by Congress,

then the first prosecution will stand as a bar to the second.

This is a difficult question of first impression in a long

line of cases dealing with Indian sovereignty beginning as

early as the days of Chief Justice John Marshall.’ The

district court concluded that because the Tribe’s powers

were first eliminated, and then later restored by act of

Congress, its prosecution of Long was undertaken as an

arm of the federal government. It therefore dismissed the

federal indictment in the present case, relying on the Fifth

Amendment’s Double Jeopardy Clause. We have come to

the opposite conclusion about the source of authority that

lay behind the Tribe’s prosecution. In our view, the Tribe

was exercising its own sovereign power, and thus the dual

sovereignty exception to the Double Jeopardy Clause

authorizes the sequential federal and tribal prosecutions.

We therefore reverse the district court’s decision and

remand for further proceedings.

In April 2001, defendant Long stole a pick-up truck on

the Menominee Reservation in Keshena, Wisconsin, and

crashed it into a tree. Both Long and the truck’s owner are

members of the Menominee Indian Tribe. Long was first

convicted of theft and malicious mischief in a Menominee

tribal court, which handed down a sentence of 120 days in

tribal jail after he pleaded no-contest to the theft charge.

* Throughout this opinion, we use the term “Indian” rather than

“Native American,” reflecting the fact that both tradition, governing

statutes and cases follow that practice.

App. 3

At the behest of tribal authorities who were frustrated by

Long’s recidivism, a federal grand jury in the Eastern

District of Wisconsin indicted Long for the same theft.

Federal jurisdiction was premised on 18 U.S.C. § 1153(a),

the Indian Major Crimes Act, which grants federal juris-

diction over fourteen enumerated crimes, including lar-

ceny, committed on Indian reservations by Indians. See

also 18 U.S.C. § 661 (federalizing the crime of larceny

within the United States’s territorial jurisdiction).

Long moved to dismiss the federal indictment on

double jeopardy grounds and alternatively asked that the

court abstain from exercising jurisdiction. The magistrate

judge recommended denying both aspects of his motion.

The district court agreed in part, finding that the case did

not warrant the extraordinary step of abstention, but it

concluded that the subsequent federal prosecuticn violated

the Double Jeopardy Clause, and for that reason it dis- -

missed. the indictment. The government has appealed, as

is its right under 18 U.S.C. § 3731. The absteution ruling

is not before us, as Long has not filed a cross-appeal from

that aspect of the court’s decision. We nets, however, that

a federal court generally may not choose to “abstain” from

exercising its jurisdiction in a criminal prosecution.

Although the post-colonial story of the Menominee

Indians has been recounted in detail on numerous occa-

sions, we find it useful for purposes of evaluating the

arguments before us to review some of the high points.

See, e.g., Menominee Indian Tribe of Wisconsin v. Thomp-

son, 161 F.3d 449, 452-53 (7th Cir.1998) (discussing treaty

history between Menominee Tribe and United States.

App. 4

government); Lac Courte Oreilles Band of Lake Superior

Chippewa Indians v. Voigt, 700 F.2d 341, 353-54 (7th

Cir.1983) (historical overview); Sturdevant v. Wilber, 464

F.Supp. 327, 328 (E.D.Wis.1979) (discussing termination

and restoration); State v. Webster, 114 Wis.2d 418, 338

N.W.2d 474, 476-77 (1983) (discussing state jurisdiction

over Menominee Tribe and reservation).

The Tribe’s 276,000 acre reservation, located at the

mouth of the Oconto and Wolf rivers in Wisconsin, was

created by the Treaty of Wolf River in 1854. See Menomi-

nee Indian Tribe, 161 F.3d at 453; Menominee Tribe of

Indians v. United States, 391 U.S. 404, 405, 88 S.Ct. 1705,

20 L.Ed.2d 697 (1968). The Tribe existed as a quasi-

sovereign entity within the borders of its Indian reserva-

tion for nearly 100 years, during which time it exercised

sovereign powers over internal reservation affairs. Among

other things, the Menominee fully funded a hospital on the

reservation and operated a sustainable yield logging

business. See Patty Loew, Indian Nations of Wisconsin, 32-

34 (2001). See also Felix S. Cohen, Handbook of Federal

Indian Law, 231-35 (1982) (general discussion of tribal

sovereignty over internal affairs). Of central importance to

our case was the existence of a full-blown Menominee

judicial system, which had jurisdiction over civil and

criminal matters. Prior to the late 1800s, when the Bureau

of Indian Affairs (BIA) established a Court of Indian

Offenses on the Menominee Reservation, the Tribe oper-

ated a system of dispute resolution that was based on

ancient practices involving a Peacemaker, or respected

tribal elder. See Stephen M. Tourtillott-Grochowski,

Profile, Menominee Tribal Court, in On Common Ground:

A Meeting of State, Federal and Tribal Courts § 2 (Mar. 11-

12 1999). The BIA Court of Indian Offenses that replaced

App. 5

the Menominee dispute resolution system employed

Bureau-appointed judges and magistrates who applied

Bureau-made rules and regulations. Id.

The BIA Court was abolished when jurisdiction over

crimes committed on Menominee lands was transferred to

the state of Wisconsin (discussed in further detail below),

but that jurisdiction was restored in 1973 through a shift

in federal law that paved the way for the re-establishment

of the Court of Indian Offenses. That court remained

active until 1979 when the Tribe set up the Menominee

Tribal Court. Tourtillot-Grochowski, supra. Today, the

Menominee Tribal Court is comprised of a Supreme Court

with three sitting Justices, as well as two lower courts

presided over by two trial judges. Jd. The combined system

processed nearly 7,000 cases in 1997. Id.

Ill

Our review of the dismissal of Long’s federal indict-

ment under the Double Jeopardy Clause is de novo. United

States v. Furlett, 974 F.2d 839, 842 (7th Cir.1992). It is

apparent that this case raises complex questions about the

scope of the Double Jeopardy Clause, tribal sovereignty,

and Congress’s power to regulate Indian tribes. Together,

these points add up to an interesting question of first

impression for this court, namely, whether successive

prosecutions by an Indian tribal court and the federal

government fall within the dual sovereignty exception to

the Double Jeopardy Clause if the tribal prosecution is

undertaken by a tribe that was the subject of an Act of

Congress terminating federal supervision over the prop-

erty and members of the tribe, and whose powers were

later legislatively restored. The Supreme Court expressly

App. 6

declined to address this question in United States v.

Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303

(1978), where it issued the following disclaimer:

By emphasizing that the Navajo Tribe never lost

its sovereign power to try tribal criminals, we do

not mean to imply that a tribe which was de-

prived of that right by Act of Congress would

necessarily be an arm of the Federal Govern-

ment. That interesting question is not before us,

and we express no opinion thereon.

435 U.S. at 329 n. 28, 98 S.Ct. 1079. In fact, until this

case, this precise question had not been decided by any

court.

A. The Dual Sovereignty Doctrine

The Fifth Amendment’s Double Jeopardy Clause

states that “[n]o person shall ... be subject for the same

offence to be twice put in jeopardy of life or limb.” U.S.

Const. amend. V. The Supreme Court has interpreted the

clause as prohibiting not only multiple punishments for

the same crime, but also multiple prosecutions-as well. See

United States v. Dixon, 509 U.S. 688, 695-96, 113 S.Ct.

2849, 125 L.Ed.2d 556 (1993). One significant limitation

exists, however, to the protection afforded by the Double

Jeopardy Clause. It is known as the dual sovereignty

doctrine, under which courts recognize that the Clause is

no bar to serial prosecution and punishment undertaken

by separate sovereign entities. Heath v. Alabama, 474 U.S.

82, 88, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). As the Su-

preme Court in Heath explained,

[T]he dual sovereignty doctrine is founded on the

common-law conception of crime as an offense

App. 7

against the sovereignty of the government. When

a defendant in a single act violates the “peace

and dignity” of two sovereigns by breaking the

laws of each, he has committed two distinct “of-

fences.”

Id. at 88, 106 S.Ct. 433.

In analyzing whether sequential prosecutions are

undertaken by separate sovereign bodies, courts must

determine whether the prosecuting “entities draw their

authority to punish the offender from distinct sources -of

power.” Jd. A classic application of the dual sovereignty

doctrine is the case of successive prosecutions by a state

and the federal government. In United States v. Lanza,

260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922), the Su-

preme Court concluded that separate prosecutions under

the National Prohibition Act and state law did not violate

the Double Jeopardy Clause because the federal govern-

ment’s power to regulate intoxicating liquors was derived

from the Eighteenth Amendment whereas the state’s

regulatory power was among those powers reserved to the

states by the Tenth Amendment. Id. at 382, 43 S.Ct. 141.

Prosecutions by Indian tribes and the federal govern-

ment are prosecutions by separate sovereigns for purposes

of the Double Jeopardy Clause. See Wheeler, 435 U.S. at

328, 98 S.Ct. 1079. The Court’s decision in Wheeler reaf-

firmed the dual sovereignty doctrine and its applicability

to Indian tribes. The Court reasoned that a tribe’s power

to prosecute Indian offenders for crimes committed on

tribal lands was not derived from the federal government,

because such powers were not among the sovereign powers

that the tribes lost when they initially submitted to the

United States’s jurisdiction. /d. at 326, 98 S.Ct. 1079.

App. 8 A

The unresolved question in this case is whether the

dual sovereignty exception to the Double Jeopardy Clause

applies to those Indian tribes that were first “terminated”

and then “restored” by act of Congress. (Put otherwise, the

question is what was “terminated” — certain powers of the

tribe, or the sovereign existence of the tribe itself.) If the

restored tribes continue to exercise criminal jurisdiction

over tribal lands as a function of the inherent sovereign

powers that they retained even after formally submitting

to the United States’s ultimate sovereignty, then the dual

sovereignty doctrine insulates tribal prosecutions and

subsequent federal prosecutions (and vice versa) from

double jeopardy challenges. If, however, congressional

termination indeed cut off the Indian tribes’ inherent

sovereign powers then the question becomes whether

restoration by act of Congress also restores the tribes’

inherent sovereign powers or merely exercises a delegation

of federal power to pursue criminal prosecutions to the

tribes. If the latter view is correct, then sequential tribal

and federal prosecutions both represent an exercise of the

same sovereign’s power, and thus would violate the Double

Jeopardy Clause.

B. The Tribal Sovereignty Doctrine

.The Supreme Court has long recognized that Indian

tribes occupy a unique place in the American system of

government. See Cherokee Nation v. Georgia, 30 U.S. (5

Pet.) 1, 17, 8 L.Ed. 25 (1831). Although at one time they

may have had the status of independent nations, they lost

their full independence by virtue of their conquest first by

European and then by American colonizers — a loss that

App. 9

was later ratified by treaties. Indian tribes are nonethe-

less viewed as quasi-independent or domestic dependent

nations within the United States. Id.

As the Court’s partner in setting the boundaries of

retained tribal authority, Congress enjoys plenary powers

over Indian affairs. See Winton v. Amos, 255 U.S. 373, 393,

56 Ct.Cl. 472, 41 S.Ct. 342, 65 L.Ed. 684 (1921). Congress

derives this power “both explicitly and implicitly from the

Constitution itself.” Morton v. Mancari, 417 U.S. 535, 551-

52, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). Courts have

attributed Congress’s plenary powers over Indian relatiens

to the Indian Commerce Clause, which grants Congress

the power to “regulate Commerce ... with the Indian

Tribes,” see, e.g., Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989)

(“[TJhe central function of the Indian Commerce Clause is

to provide Congress with plenary power to legislate in the

field of Indian affairs.”), and to Congress’s protectorate or

trust relationship with the Indian tribes, see United States

v. Kagama, 118 U.S. 375, 383-84, 6 S.Ct. 1109, 30 L.Ed.

228 (1886). Others have claimed that these plenary powers

exist by virtue of conquest. See Judith Resnick, Dependent

Sovereigns: Indian.Tribes, States, and the_Federal Courts,

56 U. Chi. L.Rev. 671, 692 (1989). Either way, it is clear

that Indian tribes retain the powers of a sovereign nation

in the limited realm of internal affairs, subject to Con-

gress’s power completely to divest the tribes of such

sovereignty. See California v. Cabazon Band of Mission

Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 94 L.Ed.2d 244

(1987); Smart v. State Farm Ins. Co., 868 F.2d 929, 932

(7th Cir.1989).

Indian tribes’ retained sovereignty over internal

affairs is justified in light of the tribes’ legitimate interest

App. 10

in “control[ling] their own internal relations, and []

preserv[ing] their own unique custom and social order.”

Duro v. Reina, 495 U.S. 676, 686, 110 S.Ct. 2053, 109

L.Ed.2d 693 (1990). Such powers were not necessarily

destroyed when the Indian tribes submitted to the juris- |

diction of the United States. Id. The power to make and |

enforce criminal laws has been recognized as an exercise of

the inherent sovereign powers retained by Indian tribes

because the exercise of criminal jurisdiction over tribe

members on tribal lands “involve[s] only the relations |

among members of a tribe [and these] are not such powers

as would necessarily be lost by virtue of a tribe’s depend-

ent status.” Wheeler, 435 U.S. at 326, 98 S.Ct. 1079.

C. The Sovereign Powers of the Menominee Tribe

Central to the Supreme Court’s reasoning in Wheeler

is the distinction between sovereign powers that Indian

tribes retain despite their conquest by the United States

and those powers that are delegated to the tribes by act of

Congress. Id. The source of the Tribe’s powers here is

debatable because of a series of congressional acts that

altered the Menominee’s status as an Indian tribe. Three

statutes are relevant: Public Law 280, codified in part at

18 U.S.C. § 1162; the Menominee Termination Act, 25

U.S.C. §§ 891-902; and the Menominee Restoration Act, 25

U.S.C. §§ 903-903f.

In August 1953, in response to perceived lawlessness

on Indian reservations, the United States Congress

enacted Public Law 280, 67 Stat. 588 (1953), codified in

part at 18 U.S.C. § 1162, which gave six states (Alaska,

California, Minnesota, Nebraska, Oregon and Wisconsin)

jurisdiction to prosecute “crimes committed by or against

. |

7 App. 11

Indians in Indian country.” Webster, 338 N.W.2d at 476; see

also 18 U.S.C. § 1162 (“[TJhe criminal laws of such state or

territory shall have the same force and effect within such

Indian country as they have elsewhere within the State or

Territory.”). While Wisconsin was among the states ini-

tially covered by Public Law 280, the original statute

specifically exempted the Menominee Tribe, which lobbied

for this exception because it claimed to have an effective

tribal system of justice in place at the time. Menominee

Tribe of Indians, 391 U.S. at 411 n. 11, 88 S.Ct. 1705.

Just one year later, pursuant to a federal policy of

assimilation that existed at the time, Congress enacted the

Menominee Termination Act, Pub.L. No. 399, 68 Stat. 250,

codified at 25 U.S.C. §§ 891-902 (1953). The Menominee

Termination Act aimed to “provide for the orderly termina-

tion of Federal supervision over the property and members

of the Menominee Indian Tribe of Wisconsin.” Menominee

Tribe of Indians, 391 U.S. at 411 n. 11, 88 S.Ct. 1705. As

defined by the Act, termination meant that

[A]ll statutes of the United States which affect

Indians because of their status as Indians shall

no longer be applicable to the members of the

tribe, and the laws of the several States shall ap-

ply to the tribe and its members in the same

manner as they apply to other citizens or persons

within their jurisdiction.

Pyatskowit v. Montour, 72 Wis.2d 277, 240 N.W.2d

186, 186-87 (1976). The question here, as we said, is

whether this statute simply terminated the external

indicia of tribal status for the Menominee, or whether it

permanently changed the Tribe’s inherent sovereign

powers.

App. 12

In Menominee Tribe of Indians v. United States, the

Supreme Court explained that the Termination Act caused

the federal government to cede to the State of Wisconsin \

“its power of supervision over the tribe and the reservation

lands.” 391 U.S. at 412, 88 S.Ct. 1705. The Court declined

to read into the statutory language an abrogation of the

Menominee Indians’ hunting and fishing rights that were |

protected by treaty because the Termination Act spoke

only of “the orderly termination of Federal supervision

over the property and members of the tribe.” Id. at 412-13,

88 S.Ct. 1705. Similarly, the Supreme Court of Wisconsin

in State v. Webster, held that the Menominee Termination

Act did not extinguish the Tribe’s property interest in

reservation lands over which a right-of-way had been

granted to the state. 338 N.W.2d at 480. Explaining that

the Act restored to the Menominee Tribe “ownership of its

tribal lands” while at the same time subjecting the Tribe

“to the state’s criminal and civil jurisdiction,” id. at 477,

the Wisconsin Supreme Court necessarily contemplated

the continued existence of the Menominee Tribe as a

quasi-sovereign entity (with title to its tribal lands) post-

“termination.” Id.

Indeed, the survival of the Menominee Tribe in some

“ sovereign capacity after the Termination Act is an un-

controversial proposition. As the United States Court of

Claims explained: “The Termination Act did not abolish

the tribe or its membership. It merely terminated Federal

supervision over and responsibility for the property and

members of the tribe. The Menominee Indians continue to |

constitute a tribe.” Menominee Tribe of Indians v. United

States, 179 Ct.Cl. 496, 388 F.2d 998, 1000 (1967) (empha-

sis added).

Se ee

App. 13

Two months after the Termination Act was enacted,

Congress amended Public Law 280 to extend the State of

Wisconsin’s jurisdiction to cover crimes committed by or

against Indians on the Menominee Reservation. See

Webster, 338 N.W.2d at 476; see also 18 U.S.C. § 1162(a)

(codifying Pub.L. No. 661, 68 Stat. 795 (1954)). Even if the

Menominee Termination Act did not divest the Tribe of its

inherent sovereign powers in every regard, together with

Public Law 280 (as amended), Congress withdrew Me-

nominee jurisdiction over reservation crimes. 18 U.S.C.

§ 1162. This spelled the end of the responsibilities of the

BIA Court of Indian Offenses for the Menominee Reserva-

tion; jurisdiction over all matters was transferred to the

Wisconsin state court system. See Tourtillot-Grochowski,

supra.

The policy of “termination” was not to be the last word

in federal-tribal relations, however. In 1973, Congress

reversed course again when it enacted the Menominee

Restoration Act, 25 U.S.C. §§ 903-903f, which repealed the

Menominee Termination Act. See Latender v. Israel, 584

F.2d 817, 820 (7th Cir.1978). The Menominee Restoration

Act repudiated the federal policy of assimilation and

restored the Tribe’s pre-"termination” rights.

While Public Law 280 was never repealed, the State of

Wisconsin, consistent with Congress’s later intent as

expressed by the Menominee Restoration Act (and after

Tribe lobbying), retroceded its criminal jurisdiction over

the Menominee Reservation back to the federal govern-

ment on March 1, 1976; the federal government from that

point forward exercised concurrent. jurisdiction with the

Menominee over the crimes covered by the Major Crimes

Act. See Lafender, 584 F.2d at 818. See a'so Lowe, supra,

Indian Nations of Wisconsin at 38 (Menominee Reservation

App. 14

is the only Wisconsin Indian Reservation over which the

state retroceded its criminal jurisdiction.). The Menominee

Restoration Act, for its part, makes clear that Congress

intended to eliminate termination as a policy and practice

and to restore the Menominee Tribe to its pre-

“termination” status. 25 U.S.C. §903a(b) (“[T]here are

hereby reinstated all rights and privileges of the tribe or

its members under Federal treaty, statute, or otherwise.”).

Courts have construed the Restoration Act to effect a

full restoration of the Menominee Tribe’s pre-Termination

Act powers. For example, in Barker v. Menominee Nation

Casino, 897 F.Supp. 389, 394 ‘E.D.Wis.1995), a post-

restoration case, the district court found “no evidence in

the record that the Tribe has waived its sovereign immu-

nity” in a suit brought by a former employee of a Menomi-

nee casino. If the Tribe’s sovereign immunity remained

intact post-restoration (and we have no quarrel with that

conclusion), then we can think of no reason why the Tribe’s

criminal jurisdiction should not as well. See also Webster,

338 N.W.2d at 480. But our concern here goes beyond

whether Congress successfully restored the Menominee

Tribe’s criminal jurisdiction. It is clear that it did. For

purposes of the dual sovereignty exception, we must also

be satisfied that Congress did so not by delegating federal

power to exercise criminal jurisdiction to the Tribe (assum-

ing that such a delegation to a different entity would be

possible), but instead by restoring the Tribe’s own sover-

eign powers, which pre-dated the Termination Act, to

exercise criminal jurisdiction.

The fact that the Restoration Act uses the word

“reinstated” to describe the congressional action is one

piece of evidence in favor of the “restoration” reading and

against the “delegation” reading. Congress had not delegated

“App. 15

any power to the Tribe before the Termination Act, and

thus there was nothing from Congress that could have

been reinstated. History also supports the conclusion that

the Menominee Tribe’s criminal jurisdiction over certain

reservation crimes existed before and exists again as a

function of the Tribe’s inherent sovereign powers. This

case does not involve a people unknown to history before

Congress intervened. The Menominee Tribe inhabited the

state of Wisconsin long before European explorers reached

North American shores. In fact, the Menominee “are the

oldest known continuous residents in Wisconsin.” Nancy

Oestreich Lurie, Wisconsin Indians 10 (2002). Their

history is rich and their retained sovereign rights — though

admittedly held at the sufferance of Congress — cannot be

disregarded. The most reasonable reading of the Restora-

tion Act is as an effort by Congress to place the Menomi-

nee back ia the position they held before the Termination

Act. Any other result would place the Menominee on

different footing than those tribes newly recognized by

Congress, as well as those tribes that by chance were

spared the termination experiment. (There are currently

about 550 federally recognized Indian tribes. Approxi-

mately 110 tribes and bands were terminated in various

acts by Congress. See Michael C. Walch, Note, 35 Stan.

L.Rev. 1181, 1186 (1983).) We see no sense to such a

distinction. And while we assume that Congress neither

can nor would confer the status of a tribe onto a random

group of people, we have no doubt about congressional

power to recognize an ancient group of people for what

they are.

It is worth noting that our case does not involve the

same question that was before the Ninth Circuit in United

States v. Enas, 255 F.3d 662 (9th Cir.2001) (en banc) and

App. 16

the Eighth Circuit in United States v. Weaselhead, 156

F.3d 818 (8th Cir.), vacated by equally divided court, 165

F.3d 1209 (8th Cir.1999) (en banc). In Enas and Weasel-

head, the issue was whether Congress could create inher-

ent sovereign powers that the Supreme Court had earlier

concluded Indian tribes did not possess. The Ninth Circuit

concluded that it was within Congress’s powers to do so,

255 F.3d at 675, while the Eighth Circuit split evenly on

this question. 165 F.3d 1209. Our case does not involve

creation of any new “inherent” rights. In the Menominee

Restoration Act, Congress merely sought to restore to the

Menominee that which it had taken from the Tribe earlier.

Our conclusion that Congress had the power to undo

by legislation that which it had accomplished by legisla-

tion — restoring to the Menominee the inherent sovereign

power that it took from them in 1954 — is consistent with

the general rule about congressional power. The Supreme

Court has long recognized that “the will of a particular

Congress ... does not impose itself upon those to follow in

succeeding years.” Reichelderfer v. Quinn, 287 U.S. 315,

318, 53 S.Ct. 177, 77 L.Ed. 331 (1932), citing Newton v.

Mahoning County Comm’rs, 100 U.S. 548, 559, 25 L.Ed.

710 (1879), and Connecticut Mut. Life Ins. Co. v. Spratley,

172 U.S. 602, 621, 19 S.Ct. 308, 43 L.Ed. 569 (1899).

Contracts with the government or acts creating vested

rights in private parties raise different concerns, see

United States v. Winstar Corp., 518 U.S. 839, 871, 876, 116

S.Ct. 24382, 185 L.Ed.2d 964 (1996), but we do not have

that type of legislation before us. The text of the Menominee

Restoration Act shows that the later Congress was exercising

its legislative prerogative to undo the effects of the earlier

Termination Act. This is somewhat like what Congress does

when it exercises its power to confer jurisdiction on the

App. 17

lower federal courts. Congress’s plenary power over the

lower federal courts under Article III, § 1 of the Constitu-

tion is comparable to its plenary power over Indian affairs.

As the Supreme Court explained: “That body [Congress]

may give, withhold or restrict such jurisdiction at its

discretion, provided it be not extended beyond the bounda-

ries fixed by the Constitution.” Kline v. Burke Constr. Co.,

260 U.S. 226, 234, 43 S.Ct. 79, 67 L.Ed. 226 (1922) (dis-

cussing the Anti-Injunction Act). Just as Congress can

create, deny or limit the jurisdiction of the lower federal

courts, so too can it terminate various indicia of Indian

sovereignty, and then later restore those powers, without

affecting the fundamental existence of the tribe.

Finally, there are strong policy considerations in

support of our conclusion. As the Menominee Tribe argued

in its amicus curiae brief to this court, federal and tribal

law enforcement officials often pursue different objectives

~ when prosecuting Menominee offenders. Vandalizing a

burial site is one example where federal and tribal objec-

tives likely diverge; for the Tribe, this is a serious offense

implicating religious and cultural concerns that federal

prosecutors do not share. By applying the dual sovereignty

exception, the Tribe is free to vindicate its unique law

enforcement objectives without implicating the Double

Jeopardy Clause. Likewise, the federal government is

legitimately concerned with prosecuting tribal offenders

for serious reservation crimes, in part because tribal

punishments are limited by the Indian Civil Rights Act, 25

U.S.C. §1302(7), which prevents Indian tribes from

imposing penalties in excess of $5,000 or one year impris-

onment. If the dual sovercignty exception does not apply,

Menominee authorities must wait for federal prosecutors

to act against the most egregious reservation offenders

App. 18

because any initial tribal prosecution would prevent

subsequent federal prosecution and automatically cap the

punishment to that allowed by the Indian Civil Rights Act.

Neither tribal nor federal law enforcement objectives

should be frustrated in this way.

For the foregoing reasons, the judgment of the district

court is REVERSED and the case is REMANDED for

reinstatement of the federal indictment and further

proceedings consistent with this opinion.

App. 19

APPENDIX B

183 F.Supp.2d 1106

United States District Court,

E.D. Wisconsin.

UNITED STATES of America, Plaintiff,

Frank LONG, Defendant.

No. 01-CR-102.

Jan. 23, 2002.

Brian E. Pawlak, Racine, WI, for plaintiff.

Brian P. Mullins, Milwaukee, WI, for defendant.

DECISION AND ORDER

ADELMAN, District Judge.

Defendant Frank Long, an American Indian, moves to

dismiss a federal indictment on the ground that the

prosecution of him by the United States violates the

Double Jeopardy Clause because the Menominee Indian

Tribe previously prosecuted and convicted him of the same

offense. Magistrate Judge Patricia A. Gorence recom-

mended that I deny the motion, and defendant objected to

her recommendation. I review the portion of the recom-

mendation to which defendant objected de novo. 28 U.S.C.

App. 20

§ 636(b)(1); United States v. Raddatz, 447 U.S. 667, 673-

676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).”

I. FACTUAL BACKGROUND

The relevant facts are not in dispute. On April 23,

2001, defendant, a 19 year old enrolled member of the

Menominee Tribe, was charged in Menominee Tribal Court

with stealing a truck owned by Edward J. Reiter on March

23, 2001. On May 15, 2001, a federal grand jury indicted

him for the same theft, charging that on March 23, 2001,

he took and carried away a blue Ford F150 pickup truck

owned by Edward Reiter, an American Indian, in violation

of 18 U.S.C. § 661 and 1153(a). On July 23, 2001, defen-

dant pleaded no contest to the theft charge in tribal court

and was sentenced to 120 days in the tribal jail.” Defen-

dant subsequently appeared before a magistrate judge on

the federal charge and moved to dismiss on double jeop-

ardy grounds. .

* Defendant alternatively asked the magistrate judge to abstain

from exercising jurisdiction. The magistrate judge recommended that

this request be denied, and defendant did not object to this portion of

the recommendation. If no objection or only a partial objection is made,

the district court reviews those unobjected to portions of the recom-

mendation for clear error. Johnson v. Zema Sys. Corp., 170 F.3d 734,

739 (7th Cir.1999). The clear error standard is met only if I am “left

with the definite and firm conviction that a mistake has been made.”

Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir.1997).

Finding no clear error in the magistrate’s recommendation that I deny

defendant’s motion to abstain, I will adopt that portion of the

recommendation.

* Defendant also pleaded guilty to malicious mischief for having

driven the truck into a tree and received a concurrent 120 day sentence

on that count.

App. 21

The unique history of the Menominee Tribe is also

relevant to this case. Prior to the arrivals of Europeans,

the Menominee people had a system for handling disputes

that centered around a Peacemaker, generally a respected

elder recognized for great wisdom. Hon. Stephen M.

Tourtillott-Grochowski, Profile, Menominee Tribal Court,

in On Common Ground: A Meeting of State, Federal and

Tribal Courts § 2 (Mar. 11-12 1999). After the establish-

ment of the United States, the Tribe was granted a reser-

vation in Wisconsin by the Treaty of Wolf River in 1854.

State v. Webster, 114 Wis.2d 418, 421, 338 N.W.2d 474

(1983) (citing 10 Stat. 1064 (1854)). In the late 1800s the

Bureau of Indian Affairs established a Court of Indian

Offenses on the Menominee Reservation. This court was

staffed by tribal judges appointed by the Bureau who

operated under regulations promulgated by the Bureau

and codified in the Code of Federal Regulations, 25 C.FR.

part 11. Tourtillott-Grochowski, supra.

For nearly a century, the Tribe was sovereign within

its reservation trust lands, with the power to enforce its

criminal laws against Tribe members through its courts.

See generally Felix S. Cohen, Handbook of Federal Indian

Law 231-35 (1982) (tribes began their relationship with

the federal government with the sovereign powers of

independent nations; upon coming under the authority of

the United States, certain limitations on external powers

followed, but the United States permitted then protected

the tribes in their continued internal government).

On June 17, 1954, Congress enacted the Menominee

Termination Act. Webster, 114 Wis.2d at 422, 338 N.W.2d

474 (citing Pub.L. No. 399, 68 Stat. 250 (1954)). “The

purpose of the Termination Act was ‘to provide for orderly

termination of Federal supervision over the property and

App. 22

members of the Menominee Indian Tribe of Wisconsin.’”

Id. (quoting 68 Stat. at 250). On August 24, 1954, the same

Congress also enacted Public Law 280, 18 U.S.C. § 1162, |

which transferred criminal jurisdiction over members of

the Menominee Tribe from the federal government to the

State of Wisconsin.’ See Latender v. Israel, 584 F.2d 817,

819 (7th Cir.1978). The result of these two laws was to

terminate tribal sovereignty and to place Menominee

tribal members accused of criminal conduct in the same

position as other residents of the State of Wisconsin.‘ See

Menominee Tribe of Indians v. United States, 391 U.S. 404,

409, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Application of

Nacotee, 389 F.Supp. 784, 785 (E.D.Wis.1975); see also

Cohen, supra, at 175 (“The result [of termination] was that

all criminal and civil cases were handled by state courts,

and federal and tribal law were no longer applicable... .

Another important practical effect of termination was to

remove the sovereignty of terminated tribes.”).

On December 22, 1973 Congress repealed the Termi-

nation Act by enacting the Menominee Restoration Act, 25

U.S.C. §§ 903-903f. The Act reinstated all “rights and |

privileges of the tribe or its members under Federal treaty,

statute or otherwise which may have been diminished or

lost pursuant to” the Termination Act. 25 U.S.C. § 903a(b).

It further stated: “Nothing contained in this subchapter

shall diminish any rights or privileges enjoyed by the tribe d

* Legal matters involving tribal members were then dealt with in-

the Shawano/Menominee County Courts. Tourtillott-Grochowski, supra.

* In Menominee Tribe v. United States, 391 U.S. 404, 411, 88 S.Ct.

1705, 20 L.Ed.2d 697 (1968), the Court indicated that Public Law 280

must be considered “in pari materia with the Termination Act.”

* PLT eee

App. 23

or its members now or prior to June 17, 1954, under

Federal treaty, statute, or otherwise, which are not incon-

sistent with the provisions of this subchapter.” 25 U.S.C.

§ 903a(c).

On March 1, 1976, the State of Wisconsin-retroceded

its criminal jurisdiction over the Menominee Reservation

to the United States. Webster, 114 Wis.2d at 424, 338

N.W.2d 474. Thereafter, jurisdiction over crimes commit-

ted by Menominee Indians on the reservation (again)

vested in the federal and tribal governments. State uv.

LaTender, 86 Wis.2d 410, 431, 273 N.W.2d 260 (1979).

A Court of Indian Offenses was then re-established on

the Reservation and functioned until 1979, at which time

the Menominee Tribe established its own court system

known as the Menominee Tribal Court. Tourtillott-

Grochowski, supra. This is the court that convicted defen-

dant.

Il. DISCUSSION

The Double Jeopardy Clause of the Fifth Amendment

provides that the government shall not put a person in

jeopardy of life or limb twice “for the same offence.” U.S.

Const. amend. V. The clause affords a defendant three

basic protections: (1) protection against successive prose-

cution for the same offense after acquittal; (2) protection

against successive prosecution for the same offense after

conviction; and (3) protection against multiple punish-

ments for the same offense. North Carolina v. Pearce, 395

U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). When

a defendant is successively prosecuted under two different

statutes, the test for determining whether the prosecu-

tions involve the same offense is whether each statute

App. 24

requires proof of a fact which the other does not. Block-

burger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76

L.Ed. 306 (1932).

Defendant argues that the United States is prosecut-

ing him for the same offense that he was previously

convicted of in the Menominee Tribal Court. The United

States does not dispute that the tribal law under which

defendant was convicted and the federal statute under

which he is charged require proof of the same facts but

argues that its prosecution of defendant is not barred

because the Tribe and the United States are separate

sovereigns. The Double Jeopardy Clause does not prohibit

multiple prosecutions for the same conduct “when they are

carried out by separate sovereigns.” See United States v.

Enas, 255 F.3d 662, 665-66 (9th Cir.2001), cert. denied, __

U.S. __, 122 S.Ct. 925, 151 L.Ed.2d 888 (2002).

The question therefore is whether for double jeopardy

purposes the Menominee Tribe is a separate sovereign

from the United States. The Supreme Court addressed a

similar question in United States v. Wheeler, 435 U.S. 313,

98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), where the United

States prosecuted an Indian who had previously been

prosecuted for the same conduct by the Navajo Tribe. The

Wheeler Court first reaffirmed the “well-established

principle that a federal prosecution does not bar a subse-

quent state prosecution of the same person for the same

acts, and a state prosecution does not bar a federal one.

The basis for this doctrine is that prosecutions under the

laws of separate sovereigns do not, in the language of the |

Fifth Amendment, ‘subject [the defendant] for the same

offence to be twice put in jeopardy.’” Id. at 316, 98 S.Ct.

1079. This is so because each sovereign is able to define an

“offence” according to its own laws. Therefore, the same

( App. 25

act may be an “offence” under the laws of either, and an

offender punished by both has not been punished twice for

the same offence; rather, he has committed two offences.

Id. at 317, 98 S.Ct. 1079 (citing Moore v. Illinois, 14 How.

13, 19-20, 14 L.Ed. 306).

However, the Court noted that the so-called dual

sovereignty concept does not apply where successive cases

are brought by nominally different prosecuting entities.

Id. at 318, 98 S.Ct. 1079. For example, a soldier who had

been acquitted of murder by a federal court-martial could

not be retried for the same offense by a territorial court in

the Philippines, id. at 318, 98 S.Ct. 1079, because a

territorial government is a creation of Congress “and its

judicial tribunals exert all their powers by authority of the

United States.” Grafton v. United States, 206 U.S. 333,

354, 27 S.Ct. 749, 51 L.Ed. 1084 (1907). “When a territo-

rial government enacts and enforces criminal laws to

govern its inhabitants, it is not acting as an independent

political community like a State, but as ‘an agency of the

federal government.’” Wheeler, 435 U.S. at 321, 98 S.Ct.

1079 (quoting Domenech v. Nat'l City Bank, 294 U.S. 199,

204-05, 55 S.Ct. 366, 79 L.Ed. 857 (1935)). Therefore,

“successive prosecutions by federal and territorial courts

are impermissible because such courts are ‘creations

emanating from the same sovereignty.’” Id. at 318, 98

S.Ct. 1079 (quoting Puerto Rico v. Shell Co., 302 U.S. 253,

264-66, 58 S.Ct. 167, 82 L.Ed. 235 (1937)). Similarly,

successive prosecutions by a city and the state of which it

is a political subdivision for the same unlawful conduct

violate the Double Jeopardy Clause, notwithstanding that

state law treated them as separate sovereigns. Id. at 318-

19, 98 S.Ct. 1079 (citing Waller v. Florida, 397 U.S. 387, 90

S.Ct. 1184, 25 L.Ed.2d 435 (1970)).

App. 26

The defendant in Wheeler argued that because Indian

tribes derive their power to punish crimes from the federal

government and because Congress has plenary authority

over tribes, the concept of dual sovereignty should not be

invoked to authorize successive prosecutions by a tribe

and the federal government. Jd. at 319, 98 S.Ct. 1079. The

Court rejected the argument, focusing not on the federal

government’s power over Indian tribes but rather on the

source of the tribes’ sovereignty. Jd. at 320, 98 S.Ct. 1079.

Unlike cities, which are creations of states, and territories,

which are creations of Congress, id. at 320-21, 98 S.Ct.

1079, the Court noted: “The powers of Indian tribes are, in

general, ‘inherent powers of a limited sovereignty which

has never been extinguished.’” Id. at 322, 98 S.Ct. 1079

(quoting Felix S. Cohen, Handbook of Federal Indian Law

122 (1945) (emphasis in original)).

The Court acknowledged that since their incorpora-

tion within the territory of the United States Indian tribes

no longer possessed the full attributes of sovereignty. But

the tribes had not given up their full sovereignty. Id. at

323, 98 S.Ct. 1079.

The sovereignty that all Indian tribes retain is of

a unique and limited character. It exists only at

the sufferance of Congress and is subject to com-

plete defeasance. But until Congress acts, the

tribes retain their existing sovereign powers. In

sum, Indian tribes still possess those aspects of

sovereignty not withdrawn by treaty or statute,

or by implication as a necessary result of their

dependent status.

It is evident that the sovereign power to punish

tribal offenders has never been given up by the

Navajo Tribe and that tribal exercise of that

power today is therefore the continued exercise of

Ae Ee NPR Ty TAOS IG ee Sar

App. 27

retained tribal sovereignty. Although both of the

treaties executed by the tribe with the United

States provided for punishment by the United

States of Navajos who commit crimes against

non-Indians, nothing in either of them deprived

the tribe of its own jurisdiction to charge, try, and

punish members of the tribe for violation of

tribal law.

Id. at 323-34, 98 S.Ct. 1079.

The Court further noted that Congress had repeatedly

recognized that Indian tribes had the power to punish

their own members for violations of tribal law and had

declined to disturb that power. Id. at 325, 98 S.Ct. 1079.

Moreover, the sovereign power of the tribes to prosecute

their members for tribal offenses was not lost by virtue of

their dependent status. Jd. at 326, 98 S.Ct. 1079.

Finally, the Court said: “That the Navajo Tribe’s

power to punish offenses against tribal law committed by

its members is an aspect of its retained sovereignty is

further supported by the absence of any federal grant of

such power. If Navajo self-government were merely the

exercise of delegated federal sovereignty, such delegation

should logically appear somewhere.” Id. at 326-27, 98 S.Ct.

1079.

In sum, the power to punish offenses against

tribal law committed by tribe members, which

‘was part of the Navajos’ primeval sovereignty,

has never been taken away from them, either ex-

plicitly or implicitly, and is attributable in no

way to any delegation to them of federal author-

ity. It follows that when the Navajo Tribe exer-

cises this power, it does so as part of its retained

sovereignty and not as an arm of the Federal

Government.

App. 28

Id. at 328, 98 S.Ct. 1079 (footnote omitted). The Court

thus held that because “tribal and federal prosecutions are

brought by separate sovereigns, they are not ‘for the same

offence,’ and the double jeopardy clause thus does not bar

one when the other has occurred.” Id. at 329-30, 98 S.Ct.

1079.

In a footnote, the Court expressed the following

caveat: “By emphasizing that the Navajo Tribe never lost

its sovereign power to try tribal criminals, we do not mean

to imply that a tribe which was deprived of that right by

statute or treaty and then regained it by an Act of Con-

gress would necessarily be an arm of the Federal Govern-

ment. That interesting question is not before us, and we

express no opinion thereon.” Jd. at 328 n. 28, 98 S.Ct.

1079.

In the two decades since Wheeler was decided the

Court has not had occasion to answer this interesting

question. And, while a few lower federal courts have

grappled with related issues, none has addressed it either.

Nevertheless, a brief discussion of the lower court cases is

helpful.

In United States v. Enas, 255 F.3d 662, 664 (9th

Cir.2001) (en banc), cert. denied, __ U.S. ~_, 122 S.Ct.

925 (2002), the issue was whether, consistent with the

Double Jeopardy Clause, an Indian tribe and the federal

government could both prosecute a nonmember Indian for

the same conduct. The factor that distinguished the case

from Wheeler was the tribal identity of the defendant. In

Wheeler, the defendant was a member of the tribe that had

prosecuted him. Michael Enas, however, was an enrolled

member of the San Carlos Apache Tribe when he allegedly

stabbed Joseph Kessay, an enrolled member of the White

App. 29

Mountain Apache Tribe, on reservation land governed by

the White Mountain Apaches. Jd. at 665. Enas was

charged in White Mountain Apache Tribal Court with

assault with a deadly weapon and assault with intent to

cause serious bodily injury. He pled guilty and was sen-

tenced to 180 days in jail. Id. at 665.

When a federal grand jury indicted him for assault

arising out of the same incident, Enas moved to dismiss

the indictment on double jeopardy grounds, claiming that

the Tribe and the United States were arms of the same

sovereign for purposes of the prosecution. Enas ‘argued

that his case was not governed by Wheeler because the

Tribe’s authority to punish him, a nonmember, was not

inherent but rather derived from Congress. This was so,

he argued, because in Duro v. Reina, 495 U.S. 676, 688,

110 S.Ct. 2053, 109 L.Ed.2d 693 (1990), the Supreme

Court had held that tribes lack the inherent authority to

try nonmembers in tribal courts, and Congress had

promptly “overruled” the Court by amending the Indian

Civil Rights Act (ICRA) by adding to the definition of

tribal “powers of self-government” “the inherent power of

Indian tribes, hereby recognized and affirmed, to exercise

criminal jurisdiction over all Indians.” Enas, 255 F.3d at

669. Enas contended that by conferring on tribes the

authority to prosecute nonmember Indians Congress had

made tribes and the federal government arms of the same

sovereign for double jeopardy purposes.

Although the reasoning of the majority and concurring

judges differed, the court unanimously held that the

authority exercised by the Tribe was inherent rather than

delegated, and that the federal prosecution could go

forward. The seven member majority said that “the critical

question ... is whether Congress had the power to enact

App. 30

its vision of tribal sovereignty, one that was at odds with

the Supreme Court’s historical narrative.” Id. at 670. The

majority then undertook to determine whether the Tribe’s

status was an issue of constitutionai, statutory, or federal

common law, stating that in the first category the courts

have the last word, but that in the latter two, Congress

was the ultimate authority. Id. at 673-74. Concluding that

the issue was one of federal common law, the majority held

that Congress could state, as it had done in the amend-

ments to the ICRA, that tribal jurisdiction over nonmem-

bers was inherent. Jd. at 675; accord United States v.

Archambault, 174 F.Supp.2d 1009, 1016-17 (D.S.D.2001)

(finding that because Congress could recognize the inher-

ent power of a tribe to try nonmember Indians double

jeopardy was not violated by a subsequent federal prosecu-

tion).

The four concurring judges also concluded that the

Tribe’s power to prosecute Enas was inherent but did not

believe that they needed to assess the relative power of

Congress and the Supreme Court in order to reach that

decision. Rather, they said that tribes lacked authority to

try nonmembers in their criminal courts until Congress

enacted the 1990 amendments, exercising “its plenary

power under the Indian Commerce Clause to restore

prospectively the inherent authority of Indian tribes ‘over

all Indians,’ including nonmembers.” Enas, 255 F.3d at

679. However, “the fact that Congress enabled the tribes to

exercise inherent sovereign power ‘does not mean that

Congress is the source of that power.” Jd. (quoting

Wheeler, 435 U.S. at 328, 98 S.Ct. 1079). Rather, “tribal

sovereignty is a vessel that Congress may fill or drain at

its pleasure, subject to certain constitutional limitations.”

Id. at 680. When Duro was decided, the tribes’ sovereignty

App. 31

did not extend to prosecution of nonmember Indians, but

then “Congress added to the vessel of tribal sovereignty by

recognizing the tribes’ inherent power to prosecute mem-

bers of other tribes who commit crimes on the reserva-

tion.” Id.

In United States v. Weaselhead, 156 F.3d 818 (8th

Cir.1998), rev'd en banc, 165 F.3d 1209 (8th Cir.1999), a

case factually similar to Enas, a majority of the panel

reached a contrary decision, concluding that the “ascer-

tainment of first principles regarding the position of

Indian tribes within our constitutional structure of gov-

ernment is a matter ultimately entrusted to the Court and

thus beyond the scope of Congress’s authority to alter

retroactively by legislative fiat.” Jd. at 824. Thus, although

Congress could delegate additional prosecutorial authority

to a tribe, it could not “declare existent a sovereignty-

based jurisdiction that the Court has declared to be non-

existent.” Id. Therefore, a federal prosecution of a non-

member Indian previously tried in a tribal court for the

same behavior was barred by the Double Jeopardy Clause.

Id.

In dissent, Judge Morris Arnold wrote that “the

question of what powers Indian tribes inherently possess

... has always been a matter of federal commen law,” id.

at 825, in which Congress was supreme, and that there-

fore Congress could expand and contract the inherent

sovereignty of the tribes. Thus, he concluded that the

tribal court proceeded under inherent sovereignty, not

under power delegated by Congress. Id. “

However, the opinion of the panel in Weaselhead was

withdrawn and vacated in favor of rehearing by the court

en banc. The court then split, four to four, the effect of

App. 32

which was to affirm the district court’s order denying the

motion to dismiss. The court produced no opinion, only a

per curiam order. United States v. Weaselhead, 165 F.3d

1209 (8th Cir.), cert. denied, 528 U.S. 829, 120 S.Ct. 82,

145 L.Ed.2d 70 (1999).

In United States v. Norquay, 702 F.Supp. 228

(D.Minn.1989), vacated and remanded on other grounds,

905 F.2d 1157 (8th Cir.1990), the defendant claimed that a

federal prosecution subsequent to his conviction in Red

Lake Tribal Court for the same behavior violated the

Double Jeopardy Clause. He claimed that under an 1866

agreement between the federal government and the Red

Lake Tribe, the tribe surrendered its inherent sovereign

authority to prosecute crimes. He argued that, under

Wheeler, once surrendered, an Indian tribe cannot regain

its sovereign status and independent sovereign authority

to prosecute crimes, and that therefore the Red Lake

Tribe’s power to prosecute him was derived from the

federal government. Id. at 229. However, the court found it

unnecessary to decide the question concluding that the

1866 agreement was never adopted by Congress and had

no legal effect. Jd. at 230.

Thus, no lower court decision has addressed the

question presented here — whether, when Congress rein-

states sovereign power that it has previously extinguished,

such power is properly characterized as inherent or

delegated. As previously set forth, the Menominee Tribe

was sovereign within its reservation from 1854 to 1954. In

1954 pursuant to the Termination Act and Public Law 280,

Congress terminated its sovereignty and transferred

criminal jurisdiction over tribal members to the State of

Wisconsin. In 1973, dissatisfied with the experience under

the Termination Act, Congress enacted the Menominee

App. 33

Restoration Act reinstating the Tribe’s rights and privi-

leges. The State then gave up its criminal jurisdiction over

the reservation, and jurisdiction again vested in- the

federal and tribal governments.

The question presented, therefore, is unique because

the history of the Menominee Tribe is unique. The United

States correctly asserts that the Restoration Act of 1973

restored the powers that the Tribe possessed before the

Termination Act of 1954. This assertion, however, begs the

question of whether the source of such powers is the

Tribe’s inherent sovereignty or a delegation from Con-

gress. As the majority noted in Enas, “the line between

inherent and delegated powers is a fuzzy one, and at times

seems to collapse.” Enas, 255 F.3d at 671. It is difficult

enough, conceptually, to recognize as sovereign an entity

whose authority, unlike that of other sovereignties such as

states or countries, may be enhanced, diminished, altered,

or even extinguished by an act of Congress. Nevertheless,

the Supreme Court recognizes that tribes retain sovereign

powers “until Congress acts.” Wheeler, 435 U.S. at 323, 98

S.Ct. 1079.

In the case of the Menominee Tribe Congress did act.

In fact, Congress acted twice, first in 1954 by terminating

the Tribe’s sovereignty and, second in 1973 by reinstating

it. To conclude in the face of these acts that the Tribe’s

power to prosecute defendant is inherent rather than

delegated would be to collapse and render meaningless the

distinction between inherent and delegated power, which

is the linchpin of the Wheeler decision. When Congress

passed the Restoration Act in 1973, it conferred power on a

Tribe that had none. If this was not a delegation of power

it is difficult to imagine what would be. -

App. 34

The Wheeler Court based its conclusion that the

Navajo Tribe’s prosecution of Wheeler was an exercise of

inherent sovereign power on several grounds. First, the

Court said that while the Tribe’s sovereignty existed only

at the sufferance of Congress, the Tribe retained such

power until Congress acted. Wheeler, 435 U.S. at 323-24,

98 S.Ct. 1079. In the present case, by passing the Termi-

nation Act Congress exercised its plenary power and

withdrew the Menominee Tribe’s sovereignty. Second, the

Court said that Congress had repeatedly recognized the

right of the tribes to punish their own members and

declined to disturb that power. Jd. at 325, 98 S.Ct. 1079. In

the present case, Congress did disturb such power as the

Termination Act constituted a complete “defeasance” of

tribal sovereignty. See id. at 323, 98 S.Ct. 1079. Third, the

Court noted that if the Navajo Tribe had acted pursuant to

a delegation of federal power, “such delegation should

logically appear somewhere.” Jd. at 327, 98 S.Ct. 1079. In

the present case, the delegation of power appears in 25

U.S.C. § 903a, the Restoration Act.

Further, the language of both the Termination and

Restoration Acts supports the conclusion that the latter

constituted a delegation of power. The Termination Act did

not suspend or modify the-tribe’s sovereign status but

effected a “termination” of it. 25 U.S.C. § 891 (1954). And

the Restoration Act, unlike the 1990 amendments to the

ICRA, 25 U.S.C. §1301(2), did not merely recognize

inherent tribal power but “reinstated” power that Con-

gress had previously extinguished. If Congress had in-

tended the statute to operate as a recognition of inherent

power, like the 1990 amendments to the ICRA, it would

have said so.

App. 35

Moreover, the legislative history of the Restoration Act

supports the conclusion that the Act delegated power. “The

legislation calls for the recasting and the recreation of

tribal government and the reestablishment of tribal

control.” 119 Cong.Rec. H34301 (daily ed. Oct. 16, 1973)

(statement of Rep. Meeds); see also Latender, 584 F.2d at

822 (quoting Sen.Rep. No. 93-604, 93rd Cong., 1st Sess. 6

(1973)) (according to the Senate Report, the Restoration

Act was intended to “reinstate the tribe to all rights and

privileges which were lost” by the Termination Act).

Nowhere in the legislative history is there evidence of

congressional intent to recognize inherent power.

Nothing in Enas suggests a different result. Enas

involved a statute that unlike the Restoration Act ex-

pressly recognized inherent tribal power.’ The Enas

majority relied upon this specific statement of congres-

sional intent, expressed pursuant to Congress’s plenary

* I need not address the question of whether Congress could have

declared in the Restoration Act that the power it was restoring was

inherent. However, such an attempt would likely have stretched

language and logic beyond the breaking point. First, the word inherent

means, “Existing in someone or something as a permanent and insepa-

rable element, quality, or attribute.” The Random House Dictionary of

the English Language 982 (2d ed.1987) (emphasis added). The Tribe’s

sovereignty as it currently exists obviously does not meet that defini-

tion; because it was terminated from 1954 to 1973 it does not stretch in

-€ permanent and uninterrupted line from the days before Europeans

arrived to the present. Second, when Congress repeals an act we do not

erase all reference to that act. A reminder of the Menominee Termina-

tion Act remains in our statute books. United States Code Annotated,

Title 25: Indians §§ 441 to 1030, p. 665-66. Finally, unlike Orwell’s

residents of Oceania, we do not accept the notion that something has

always been so when we know it has not. See George Orwell, Nineteen

Eighty-Four 181-82 (1949).

App. 36

authority over the tribes. Such a statement is conspicu-

ously absent in this case. Enas, 255 F.3d at 673-75.

Further, the concurrence in Enas compared tribal

authority to a vessel “that Congress may fill or drain at its

pleasure, subject to certain constitutional limitations.” Id.

at 680 (Pregerson, J., concurring). Applying that metaphor

to the present case, Congress did not fill or drain the

vessel in passing the Termination Act but rather elimi-

nated the vessel entirely. In passing the Restoration Act,

Congress recreated the vessel. When it recreated the

vessel, Congress delegated power to the Tribe.

Thus, while the Menominee Tribe is a separate sover-

eign, the source of its sovereignty is the Restoration Act of

1973. Therefore, the dual sovereignty doctrine does not

apply in the present case because the Tribe and the United

States are nominally different prosecuting entities whose

authority stems from the same source. Wheeler, 435 U.S.

at 318, 98 S.Ct. 1079 (citing Grafton, 206 U.S. at 354-55,

27 S.Ct. 749). The Menominee Tribe owes its current

existence as a sovereign entity to the United States, and

its courts exert power by authority of the United States.

Therefore, because defendant was previously convicted in

the Menominee Tribal Court of the theft with which he is

presently charged, the present prosecution violates the

Double Jeopardy Clause.

In reaching this conclusion I am mindful of the United

States’s concern about the potential problem of defendants

committing serious offenses on the reservation and quickly

pleading guilty in tribal court to avoid stiffer federal

penalties. ICRA severely limits the sentences that may be

imposed by tribal courts. 25 U.S.C. § 1302(7). See also

Wheeler, 435 U.S. at 318, 98 S.Ct. 1079 (noting concern

App. 37

that prosecution by one sovereign for minor offense might

bar prosecution by the other for much graver one, depriv-

ing the latter from effectively enforcing its laws).° The

result the government fears, however, can be avoided by

close communication between tribal and federal prosecu-

tors regarding charging decisions.

I also note that successive prosecutions based on the

same conduct (even if constitutional) are disfavored. See

Petite v. United States, 361 U.S. 529, 530-31, 80 S.Ct. 450,

4 L.Ed.2d 490 (1960). The purpose of the Petite policy is to

protect the individual “from any unfairness that is associ-

ated with successive prosecutions based on the same

conduct.” Rinaldi v. United States, 434 U.S. 22, 27, 98

S.Ct. 81, 54 L.Ed.2d 207 (1977). Noting that the dual

sovereignty doctrine has the potential for abuse, the Court

has stated that “the greatest self-restraint is necessary

when that federal system yields results with which a court

is in little sympathy.” Bartkus v. Illinois, 359 U.S. 121,

138, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); see also Fox v.

Ohio, 46 U.S. 410, 434, 5 How. 410, 12 L.Ed. 213 (1847)

(individuals should be subjected to successive prosecutions

only in “instances of peculiar enormity”). Indeed,

“[rlesponding to the harshness of the dual sovereignty

doctrine, over half of the states ... prohibit state prosecu-

tion following federal prosecution for the same offense

based either on state statutes or state constitutional

* The present case does not present this situation as the offense

involved is relatively minor. As the Ninth Circuit has noted, it is “rather

surprising” that larceny is included in the Major Crimes Act. Wetsit v.

Stafne, 44 F.3d 823, 825 (9th Cir.1995) (also noting that for years

federal prosecutions for theft on reservations were “virtually nonexis-

tent”).

App. 38

provisions.” People v. Morgan, 785 P.2d 1294, 1296

(Colo.1990).

Ill CONCLUSION

For the reasons stated,

IT IS HEREBY ORDERED that the magistrate

judge’s recommendation to deny defendant’s motion to

abstain from exercising jurisdiction is ADOPTED, and

the motion is DENIED; the magistrate judge’s

recommendation to deny defendant's motion to dismiss

based on double jeopardy is REJECTED, and the motion

is GRANTED; and the indictment is DISMISSED.

App. 39

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

UNITED STATES OF AMERICA,

Plaintiff Case No.

01-Cr-01-Cr102

v- [Title 18, U.S.C.

FRANK LONG, (dob: 02-23-82) §§ 661 & 1153(a)]

Defendant. INDICTMENT

COUNT ONE

THE GRAND JURY CHARGES THAT:

On or about March 23, 2001, at Keshena, within the

exterior boundaries of the Menominee Indian Reservation,

and within the State and Eastern District of Wisconsin,

FRANK LONG,

the defendant herein, a Native American Indian, did take

and carry away, with intent to steal or purloin, a motor

vehicle, to wit: a blue Ford F150 pickup truck, with a

value exceeding one thousand dollars ($1,000) and owned

by Edward Reiter, a Native American Indian;

All in violation of Title 18, United States Code, Sec-

tions 661 and 1153(a).

A TRUE BILL:

/s/ Kathleen J. Koch

FOREPERSON

Dated: May 15, 2001

App. 40

/s/ James L. Santelle

JAMES L. SANTELLE

United States Attorney

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.