Double Jeopardy and Nonmember Indians in Indian Country

• Publication year: 2021
• Citation: Vol. 82

82 Nebraska L. Rev. 889. Double Jeopardy and Nonmember Indians in Indian Country

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Terrill Pollman*

Double Jeopardy and Nonmember Indians in Indian Country

TABLE OF CONTENTS

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 889
II. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . 895
A. Demographics in Indian Country . . . . . . . . . . . . . . . . 895
B. Double Jeopardy and the Dual Sovereignty Doctrine
in Indian Country . . . . . . . . . . . . . . . . . . . . . . 899
1. The Dual Sovereignty Doctrine . . . . . . . . . . . . . . . 899
2. United States v. Wheeler . . . . . . . . . . . . . . . . . 902
C. Criminal Jurisdiction in Indian Country . . . . . . . . . . . 906
1. Criminal Jurisdiction in Indian Country . . . . . . . . . . 907
2. Oliphant v. Suquamish Indian Tribes . . . . . . . . . . . . 910
3. Duro v. Reina . . . . . . . . . . . . . . . . . . . . . . . 912
D. Separation of Powers and the Duro Override . . . . . . . . . . 916
III. The Circuit Splits . . . . . . . . . . . . . . . . . . . . . . . 919
A. Weaselhead and Lara . . . . . . . . . . . . . . . . . . . . . 920
B. United States v. Enas . . . . . . . . . . . . . . . . . . . . 924
IV. The Choices Before the Court . . . . . . . . . . . . . . . . . . 926
A. The Court Could Decide that Duro is
Constitutionally Based . . . . . . . . . . . . . . . . . . . . 928
B. The Court Could Conclude that Duro was Decided
as a Matter of Federal Common Law . . . . . . . . . . . . . . 934
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937

I. INTRODUCTION

It is a small thing: the Indian Civil Rights Act (ICRA) limits the punishment a tribal court can impose to no more than a fine and a

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year in jail.(fn1) Our system gives that much power to municipalities, including every little speed-trap town. Speeding tickets can be costly, and you can go to jail if you don't pay them. No one asks whether you had the right to participate in making those laws. It's just the way it is.

It is a great thing: the individual rights guaranteed to citizens under the Constitution or fidelity to promises made long ago, the right of a people to be recognized as sovereign, a moment of respect in a long and continuing history of conquest and colonialism.

The ambivalence of the federal government to the sovereignty of native tribes is ordinarily a quiet fact of life in this country. Now, the federal circuits have disturbed that quiet by rendering opposing rulings on the question whether the Double Jeopardy Clause bars successive tribal/federal prosecution of nonmember Indians(fn2) in Indian Country.(fn3) The Ninth Circuit has held the Double Jeopardy Clause does not present a bar to successive tribal/federal prosecutions.(fn4) In contrast, the Eighth Circuit has held that the Double Jeopardy Clause prohibits subsequent prosecution because the source of the tribe's jurisdiction, if it has jurisdictional power, is the same as the source of the federal courts'.(fn5) The circuit split has far reaching practical conse

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quences,(fn6) and the United States Supreme Court granted certiorari on the issue.(fn7)

Beyond practical consequences, however, are the doctrinal and theoretical effects. Indian law scholar Frank Pommsersheim has called this circuit split "the (little or not so little) constitutional crisis."(fn8) Like so many Indian law cases, one case becomes a microcosm for the Indian law universe by raising the fundamental questions: What are the limits of tribal sovereignty? Where is the source of tribal sovereignty? Who decides the answers to those questions?

Analyzing the sovereignty question requires a multifaceted inquiry into several complex bodies of law.(fn9) The Double Jeopardy Clause of the United States Constitution forbids multiple prosecutions based on the same facts.(fn10) The dual sovereignty exception to the Double Jeopardy Clause allows successive prosecutions by separate sovereigns, or more precisely, sovereigns that derive power from separate sources.(fn11) Thus, the Court must determine whether tribes have inherent sovereignty over nonmember Indians or have sovereignty only as derived from a delegation by the federal government.(fn12) If it is an inherent power, retained by the tribe from the days before the United States existed, the dual sovereignty exception will apply, allowing multiple prosecutions. If it is a power delegated by the federal government, the federal court and the tribal court derive their power from the same

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source, and Double Jeopardy bars successive prosecution by the two courts.

Deciding the source of tribal court criminal jurisdiction in a given situation is a complicated task, however, because tribal jurisdiction is not one-dimensional. Instead, a tribe's jurisdiction over a crime committed on the reservation often depends upon the nature of the crime, the identity of the parties, and treaties and statutes specifically ceding jurisdiction over certain matters or peoples to other sovereigns. The complexity of tribal jurisdiction derives, in part, from the demographics of the reservation. Three categories of residents make their home in Indian Country: (1) members of the tribe, (2) non-Indians, and (3) Indians who are not enrolled members of the tribe on whose reservation they reside, who are considered nonmember Indians. (fn13) Rules governing jurisdiction can differ for each category. The way courts have used these labels and practical questions raised by wide demographic variety in Indian Country play an important role in deciding tribal jurisdictional questions. The Court must consider this variety when analyzing double jeopardy issues in Indian Country.(fn14)

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Double jeopardy analysis is further complicated by the lack of clarity concerning whether tribal courts have jurisdiction over nonmember Indians at all. In Duro v. Reina,(fn15) the United States Supreme Court held that tribal courts cannot exert criminal jurisdiction over nonmember Indians. Six months later, Congress responded in what has become known as "the Duro override" or "the Duro fix." Congress amended the Indian Civil Rights Act (ICRA) to "recognize" the "inherent" power of the tribes.(fn16) The Duro override raises what scholars Philip S. Deloria and Nell Jessup Newton have called "complex and subtle issues of constitutional law."(fn17) Separation of powers questions remain concerning which law will govern: Duro, or the Duro override? If the Supreme Court decided Duro on a constitutional basis, then Congress may not have the authority to override Duro, and the Duro decision stands.(fn18) But if Duro was decided as a matter of federal common law, without a constitutional basis, then Congress can overrule the Court.(fn19) Thus, to decide the source of tribal jurisdiction, which will decide the double jeopardy question, one must carefully analyze Duro v. Reina.

Two opinions served as the primary building blocks for the Duro rationale: United States v. Wheeler(fn20) and Oliphant v. Suquamish Indian Tribe.(fn21) These cases, decided within the same year, presented different outcomes on questions of Indian sovereignty. Wheeler held that the dual sovereignty exception to the Double Jeopardy Clause allowed successive tribal/federal prosecutions for tribal members because tribal sovereignty over members was inherent and not

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delegated from the federal government.(fn22) In contrast, Oliphant held that tribal courts could not exert criminal jurisdiction over non-Indians because the tribes cannot exercise their sovereignty in ways that "conflict with the interests of [the] overriding [federal] sovereignty."(fn23) In Duro the Court attempted to reconcile the recognition of inherent sovereignty over a tribal member in Wheeler, with the rejection of sovereignty over non-Indians in Oliphant. In the process, traditional concepts of geographically-based jurisdiction gave way to what commentator L. Scott Gould calls the inception of a new paradigm of Indian sovereignty,(fn24) one based only on membership, or consent jurisdiction. (fn25) Scholar Philip Frickey, on the other hand, has written that the consent jurisdiction theory fails because it attempts "to impose an artificial coherence upon the field."(fn26) This new theory poses yet another question that runs through the multi-layered analysis concerning criminal jurisdiction, double jeopardy and nonmember Indians in Indian Country. When the United States Supreme Court addresses the issue, will it continue on the path of members-only jurisdiction for the tribes or will it leave open the older paths of deference to Congress' explicit intent in matters of tribal jurisdiction?

This Article attempts to answer this and other questions posed here. The Article gathers and analyzes various strands of law that contribute to the analysis of double jeopardy and nonmember Indians in Indian Country and the choices the Court faces when it decides double jeopardy issues. Part One briefly investigates the demographics of Indian Country, because the demographic diversity of the tribes plays a part in understanding the difficulty the Court will face when addressing this issue. Part Two reviews double jeopardy doctrines and the Wheeler decision, the first decision to address how the Double Jeopardy Clause applies to successive tribal/federal prosecutions. Part Three summarizes the complex rules governing criminal

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jurisdiction in tribal courts and examines Oliphant, Duro, and the Duro override. Part Four presents highlights from the split opinions, setting out the reasoning of the Eighth and Ninth Circuits. Part Five analyzes the choices that the Court will face if the issue comes before them. Finally, the Article concludes by recommending that the Court defer to Congress' power to determine the limits of tribal sovereignty, and that both Congress and the Court...