From formal separation to functional equivalence: tribal-federal dual sovereignty and the Sixth Amendment right to counsel.

AuthorHagen, Alex M.

    The Fifth Amendment's double jeopardy clause prohibits successive prosecutions of a defendant for the same offense. (1) Under the dual sovereignty doctrine, separate sovereigns may independently pursue prosecutions of what otherwise would be the same offense. (2) The dual sovereignty doctrine rests on the principle that an act criminalized by separate sovereigns may be punished by each. (3) Thus, the dual sovereignty doctrine, as a fundamental precept of federalism, maintains separation between the states and the federal government. (4) The doctrine, however, does more than merely advance the values of federalism: it recognizes individual states, Indian tribes, and the federal government as separate and distinct sovereigns. (5) Accordingly, it speaks to the problematic issue of how tribal sovereigns fit within the original structure of the Constitution and helps flesh out the government-to-government relations among the three sovereigns. (6)

    The dual sovereignty doctrine postulates separate spheres of authority in which each sovereign may punish violations of its substantive criminal law. (7) The line separating prosecutions by different sovereigns blurs considerably when the prosecutions of a single defendant are not chronologically discrete, but simultaneous and overlapping. (8) Due process rights, such as the Sixth Amendment right to counsel, are tied to specific stages of the criminal process; the rights available to someone suspected of a crime are distinct from those made available to someone who has been formally accused. (9) Thus, an individual may be suspected of an offense in one sovereign's investigation after having been formally accused of what would otherwise be the same offense by another sovereign. (10)

    Whether the dual sovereignty doctrine applies to the constitutional restraints that govern when and how each sovereign interacts with an individual in this unique situation remains unclear. (11) Of the five federal circuit courts that have considered this issue with respect to the Sixth Amendment right to counsel, three have held that the dual sovereignty doctrine applies; (12) two have held that it does not. (13) Although the dual sovereignty doctrine has been the subject of controversy for some time, (14) the recent split among the United States Courts of Appeals amplifies the doctrine's significance and has prompted prescriptive assessments of the role it should play in Sixth Amendment jurisprudence. (15)

    These attempts to understand and mediate the split among the federal circuit courts have failed to consider the extent to which the analysis changes depending on which sovereigns are involved. (16) This is surprising, given that the state federal permutation of the dual sovereignty doctrine is remarkably different than the tribal-federal permutation. (17) Indeed, the relationship between the United States and Indian tribes is unique, with little analogical or structural comparison to the state-federal relationship. (18)

    As distinct sovereigns, pre-existing the Constitution, tribes were not encompassed within the legal, political, or cultural orbit of the United States in the early years of the republic. (19) Furthermore, tribes are not bound by the Sixth Amendment right to counsel, but rather by due process rights that Congress established under the Indian Civil Rights Act of 1968. (20) States and tribes thus stand in a different structural relation to the federal government and their courts apply different procedural safeguards during criminal prosecutions. (21)

    This comment will show how failure to understand these differences leads to an impoverished understanding of the split among the federal circuits and prevents a realistic assessment of important issues unique to successive tribal and federal prosecutions. (22) Part II provides an overview of the state-federal permutation, focusing on the origins of the dual sovereignty doctrine and changes wrought by the selective incorporation of the Bill of Rights to the states. (23) This context illustrates the dual sovereignty doctrine's effect on a defendant's right to counsel under both the Fifth and Sixth Amendments. (24) Part III, in turn, examines the evolving nature of tribal sovereignty and the federal government's increasing role in Indian affairs and evaluates the system of "differentiated citizenship" under which individual Indians are accorded one set of rights in tribal prosecutions and another in federal prosecutions. (25) This "differentiated citizenship" creates tension between honoring the structural separation of tribal and federal systems and protecting the rights of an individual Indian who is subject to simultaneous prosecution in both. (26)

    Part IV examines this tension as it is manifested in United States v. Red Bird, (27) in which the Eighth Circuit, faced with successive tribal and federal prosecutions, declined to apply the dual sovereignty doctrine to the Sixth Amendment right to counsel. (28) The Supreme Court has affirmed the existence of tribal-federal dual sovereignty (29) and indicated that the exercise of inherent tribal sovereignty over internal matters exists at a remove from federal sovereignty. (30) In Red Bird, the Eighth Circuit posited a greater degree of interpenetration when it held that, under certain circumstances, criminal proceedings against a defendant in a tribal sovereign's jurisdiction may trigger federal right to counsel protections before the defendant is formally charged in federal court. (31) Using a functional equivalence test to compare the tribal right to counsel with its federal Sixth Amendment right to counsel, the Red Bird analysis suggests the potential for a closer, more permeable tribal-federal relationship than the "separate spheres" principle of the dual sovereignty doctrine would allow. (32)

    The Eighth Circuit's novel approach gives primacy to the experience of the individual defendant who crosses jurisdictional boundaries previously thought to separate tribal and federal sovereigns. (33) This approach replaces the austere formalism of traditional dual sovereignty analysis with a close examination of the defendant's actual experience when subject to overlapping prosecutions. (34) Subsequent cases in the federal district court of South Dakota made clear that Red Bird analysis is context-dependent and varies from tribe to tribe. (35) Thus, tribal-federal dual sovereignty not only differs from state-federal dual sovereignty in its operative principles, but it also changes depending on the nature of the adjudicative process and the right to counsel provision that a given tribal sovereign has put in place. (36) Neither the Eighth Circuit's tribal-federal dual sovereignty jurisprudence nor its divergence from other federal circuit courts is comprehensible unless the analysis adequately accounts for the importance of the identity of the specific sovereigns involved. (37)


    A divergence of opinion about the applicability of the dual sovereignty doctrine to the Sixth Amendment right to counsel exists in the current jurisprudence of the United States Courts of Appeals. (38) The issue has engendered two approaches. (39) The aim of Part II is not to weigh the relative merits of the two approaches and consider which attains more doctrinal fidelity to prior U.S. Supreme Court precedent. (40) Rather, the aim is to understand the character of the disagreement, the underlying values that are at stake, and the doctrinal significance of each model. (41)

    Understanding the character of the disagreement requires an overview of the function that the dual sovereignty doctrine serves in advancing the systemic values of federalism and the bifurcated state-federal structure. (42) The United States Supreme Court revised this structure when it applied the Due Process Clause of the Fourteenth Amendment to the states and created a unitary system of due process rights applicable in both state and federal spheres. (43) That unitary system includes a Fifth Amendment right to counsel and a Sixth Amendment right to counsel. (44)

    Just as concerns for structural separation animate the dual sovereignty doctrine, concerns for the individual defendant's rights animate the right to counsel provisions in the Fifth and Sixth Amendments. (45) The interplay between these rights to counsel changes depending on whether the dual sovereignty doctrine applies to Sixth Amendment jurisprudence. (46) The normative differences between the two federal circuit approaches become more apparent once the history behind the dual sovereignty doctrine and the purpose and sequencing of each right to counsel are understood. (47)


      The provenance of the dual sovereignty doctrine stretches back to the nineteenth century, when the validity of overlapping prosecutions by federal and state governments remained unsettled. (48) Uncertainty lingered as to the scope of federal legislative authority over criminal matters under the Constitution. (49) The U.S. Supreme Court solidified the dual sovereignty doctrine's footing in United States v. Lanza, (50) which involved the federal prosecution of liquor production after the state of Washington had already punished the defendants under its own statute. (51) The Lanza decision addressed the effect of Section 2 of the Eighteenth Amendment, which provides that "Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." (52) The U.S. Supreme Court concluded that states also had authority to enforce their preexisting liquor laws, so long as such laws were not inconsistent with the Amendment. (53)

      This holding was premised on the power of states to enforce their own laws, which did not derive "from [the Eighteenth Amendment], but from power originally belonging to the states, preserved to them by the Tenth Amendment, and now relieved from the restriction heretofore arising out of...

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