Federal Indian Law Archives - Columbia Law Review

Introduction The Constitution’s Fifth Amendment is a stalwart against governmental overreach in the criminal justice system. It sets forth numerous individual rights, including the guarantee in the Double Jeopardy Clause that no individual will be put in jeopardy twice for the same offense.[footnote]U.S. Const. amend. V.[/footnote] Animated by popular culture, storied television procedurals, and crime novels, most Americans have at least a cursory understanding of the right, which is commonly understood to prevent a defendant from being tried multiple times for the same offense. However, the Clause maintains various and perhaps less obvious complexities when applied. Just in recent years, defendants in high-profile cases have been tried more than once for crimes arising from the same underlying conduct. Consider, for example, that the three men who killed Ahmaud Arbery were convicted of murder in a state trial in 2021 and sentenced to life in prison but were tried again and convicted of federal hate crimes in February 2022.[footnote]Ahmaud Arbery Shooting: A Timeline of the Case, N.Y. Times (Aug. 8, 2022), https://www.nytimes.com/article/ahmaud-arbery-timeline.html (on file with the Columbia Law Review ).[/footnote] Such prosecutions are possible because they fall within the dual-sovereignty, or separate-sovereigns, doctrine. Pursuant to the doctrine, which the Supreme Court reaffirmed as recently as 2019 in Gamble v. United States ,[footnote]139 S. Ct. 1960, 1964 (2019) (rejecting Gamble’s call that the Court overturn the dual-sovereignty doctrine).[/footnote] multiple prosecutions for the same underlying conduct are permissible and do not violate the Double Jeopardy Clause as long as the offense charged in each prosecution derives from a separate sovereign.[footnote]See Denezpi v. United States, 142 S. Ct. 1838, 1849 (2022) (finding a defendant’s dual prosecution for “violations of a tribal ordinance and federal statute” permissible because tribes and the federal government are distinct sovereigns).[/footnote] As the Arbery case exemplifies, the Court has recognized that more than one sovereign may have a deeply held interest in pursuing its own justice in a criminal case. Most attention is focused on the doctrine as applied in the state–federal context. Much less well-known—though adhered to just as firmly in Supreme Court jurisprudence—is the doctrine’s application to prosecutions by Indian tribes.[footnote]This Article uses the terms “Indian tribe” and “tribe” to refer specifically to “any Indian tribe, band, group, pueblo, or community for which, or for the members of which, the United States holds lands in trust.” 25 U.S.C. § 2201(1) (2018). There are currently 574 such tribes that are federally recognized. Indian Entities Recognized by and Eligible to Receive Services From the United States Bureau of Indian Affairs, 87 Fed. Reg. 4636 (Jan. 28, 2022).[/footnote] That is the subject of this Article. For decades, the Supreme Court has applied the dual-sovereignty doctrine to tribal prosecutions,[footnote]When discussing tribal prosecutions, this Article is referring to the full range of legal proceedings—adversarial and nonadversarial—employed by tribes and tribal courts. For the most part, prosecutions by tribal courts today take the form of adversarial proceedings like those in federal and state courts. See infra section II.A (describing the evolution of the criminal justice system in Indian country). The authors, however, support decisions by tribes to utilize alternative systems to the adversarial model employed by federal and state courts and to seek resolutions that diverge from the punitive carceral approach in the American system. As an example of one particularly successful traditional, restorative tribal justice program, see, e.g., Henry Gass, Native Justice: How Tribal Values Shape Judge Abby’s Court, Christian Sci. Monitor (Mar. 27, 2019), https://www.csmonitor.com/USA/Justice/2019/0327/Native-justice-How-tribal-values-shape-Judge-Abby-s-court (on file with the Columbia Law Review ) (describing a Yurok Tribal Court judge’s replacement of incarceration with supervised release and Yurok traditions); Lee Romney, Tribal Court’s Chief Judge Works for Yurok-Style Justice, L.A. Times (Mar. 5, 2014), https://www.latimes.com/local/la-me-yurok-tribal-judge-20140305-dto-htmlstory.html [https://perma.cc/J8RG-BFCN] (discussing the judge’s wellness court, which offers a healing path for nonviolent offenders struggling with substance abuse). Ultimately, this Article advocates for increased federal funding to support the expansion of tribal restorative justice programs and other tribally driven approaches. It also calls for federal policy grounded in a respect for such programs, and which treats them as legitimate responses to crime in Indian country. See infra section IV.A.[/footnote] reinforcing a basic tenet of federal Indian law: Tribal sovereignty is inherent, and, therefore, Indian tribes are separate sovereigns for the purpose of the dual-sovereignty doctrine.[footnote]United States v. Wheeler, 435 U.S. 313, 329–30 (1978) (holding that tribes are separate sovereigns for the purpose of a double jeopardy claim).[/footnote] Nevertheless, the on-the-ground application of the doctrine in Indian country[footnote]“Indian country” is a term of art defined by federal law. See 18 U.S.C. § 1151 (2018).[/footnote] prosecutions—and, concomitantly, its impact on tribal sovereignty and individual defendants’ rights—is grossly understudied and rarely examined. Such an inquiry is long overdue, particularly as federal law over the last decade has broadened the scope of crimes potentially subject to dual tribal and federal prosecution.[footnote]See infra section II.A.[/footnote] There is a substantial body of legal scholarship on the dual-sovereignty doctrine, much of it critical, which is principally devoted to its application in the context of dual state and federal prosecution.[footnote]See, e.g., Anthony J. Colangelo, Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory, 86 Wash. U. L. Rev. 769, 782–90 (2009) (discussing the dual-sovereignty doctrine’s application to the U.S. federal system in the context of successive federal and state prosecutions); Paul Hoffman, Double Jeopardy Wars: The Case for a Civil Rights “Exception”, 41 UCLA L. Rev. 649, 655 (1994) (discussing the theory that the federal government should be permitted to prosecute individuals for the same conduct of which they were acquitted at the state level when federal civil rights are at stake); Harry Litman & Mark D. Greenberg, Dual Prosecutions: A Model for Concurrent Federal Jurisdiction, 543 Annals Am. Acad. Pol. & Soc. Sci. 72, 73 (1996) (endorsing “overlapping federal-state jurisdiction where necessary to permit the federal government to address aspects of national problems that the states cannot fully solve”); David Bryan Owsley, Note, Accepting the Dual Sovereignty Exception to Double Jeopardy: A Hard Case Study, 81 Wash. U. L.Q. 765, 768 (2003) (considering justifications for the dual-sovereignty doctrine in the context of a federal prosecution following a state acquittal). See also Sandra Guerra, The Myth of Dual Sovereignty: Multijurisdictional Drug Law Enforcement and Double Jeopardy, 73 N.C. L. Rev. 1159, 1161–63 (1995) (criticizing the dual-sovereignty doctrine); Susan N. Herman, Double Jeopardy All Over Again: Dual Sovereignty, Rodney King, and the ACLU, 41 UCLA L. Rev. 609, 625–27 (1994) (same); Adam J. Adler, Note, Dual Sovereignty, Due Process, and Duplicative Punishment: A New Solution to an Old Problem, 124 Yale L.J. 448, 451 (2014) (same); Erin M. Cranman, Note, The Dual Sovereignty Exception to Double Jeopardy: A Champion of Justice or a Violation of a Fundamental Right?, 14 Emory Int’l L. Rev. 1641, 1643 (2000) (same).[/footnote] But remarkably little attention has been focused on the doctrine’s application to Indian country prosecutions.[footnote]One exception is Ross Naughton, Comment, State Statutes Limiting the Dual Sovereignty Doctrine: Tools for Tribes to Reclaim Criminal Jurisdiction Stripped by Public Law 280?, 55 UCLA L. Rev. 489 (2007). Naughton analyzes the dual-sovereignty doctrine primarily in the tribal–state context, however, not the tribal–federal context. See id. at 491 (“[T]his Comment shows how tribal sovereignty is caught in the curious interplay between Public Law 280 and state statutes abrogating the dual sovereignty doctrine (DSD).”).[/footnote] Without sufficient data to inform the conversation, the precise scope and mechanics of the doctrine in the tribal–federal context are elusive. But these prosecutions raise weighty and novel issues in need of study. As this Article will examine in depth, the existing dual-sovereignty literature does little to illuminate the unique legal issues that arise in Indian country because Indian tribes are not similarly situated to states vis-à-vis the federal government. Moreover, because of the unusual jurisdictional and sentencing framework in Indian country, a disproportionate number of dual prosecutions in the United States are tribal–federal, and virtually all of these involve Indian defendants.[footnote]See infra section III.B. Due to the Supreme Court’s ruling in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), tribes lack criminal jurisdiction over non-Indians unless exercising inherent special Tribal criminal jurisdiction (STCJ) under the Violence Against Women Act (VAWA). See infra section II.A. As of the date of writing, the authors are not aware of any case where a non-Indian defendant has been subject to dual prosecution by a tribe and the federal government.[/footnote] Thus, the stakes—for tribal sovereignty and for the rights of defendants—are incredibly high. This Article is the first work of its kind. At its heart, it is a mapping project, intended to describe the dual-sovereignty doctrine in the tribal–federal context and analyze how it works on the ground in Indian country. To be clear, this Article does not endorse the existing framework—in fact, it proposes numerous reforms in Part IV—but it does take the system as it is for purposes of describing how the doctrine operates in Indian country today. In addition to undertaking a preliminary examination of the dual-sovereignty doctrine in the tribal–federal context, this Article also describes the complex interplay between the doctrine and the rest of the criminal law fabric in Indian country. Perhaps most significantly, it presents an original typology that highlights precisely when a defendant may be subject to the doctrine, which sovereigns—tribal or federal—have the authority to prosecute, pursuant to what source of power they operate, and when and how the sequence of prosecutions matters, if at all, in a particular instance. All of this leads to the Article’s central thesis: Indian tribes are separate sovereigns with rights of inherent sovereignty, and, under current conditions, the dual-sovereignty doctrine plays a central role in ensuring the safety and security of Indian country. At the same time, however, the current formation of criminal jurisdiction and sentencing in Indian country creates complexities for tribes and Indian defendants that may threaten tribal sovereignty or raise issues of unfairness for defendants. This Article offers numerous reforms—some highly ambitious and others more modest—to address these issues. In doing so, this Article acknowledges the discriminatory and assimilative history of federal law that has created the jurisdictional maze of Indian country criminal law today. Thus, its most ambitious proposals would require the federal government to honor its trust obligation to Indian tribes, necessitating adequate funding of tribal legal systems, including Indigenous, non-Western practices rooted in Indigenous worldviews, such as restorative justice programs, among others. The Article’s more modest proposals could improve Indian country criminal justice in its present form. All proposals are designed to advance tribal sovereignty and Indigenous Peoples’ rights of self-determination. Certainly, in the absence of greater empirical research in the field, there are limits to a project of this nature. Nevertheless, this Article strives to inspire closer and deeper examination of the dual-sovereignty doctrine’s impact in the tribal–federal context and, in turn, promote the development of law and policy to address the unique concerns of stakeholders in Indian country criminal justice, particularly tribes and tribal members. The Article proceeds as follows: Part I sets forth the development of the Supreme Court jurisprudence delineating and affirming the dual-sovereignty doctrine. Part II describes the doctrinal landscape of the Indian country criminal justice system and examines how the dual-sovereignty doctrine applies to Indian tribes and Indian country prosecutions. It then presents a detailed typology, analyzing eight different jurisdictional scenarios to highlight when and how dual tribal and federal prosecution may occur in Indian country. Part III turns to the question of how the dual-sovereignty doctrine is operationalized in Indian country. Here, the Article explains why the doctrine is so crucial for safety and security in Indian country—particularly for protecting Native women, girls, queer people, and Two-Spirit people. Part III then explains why there is a comparatively heightened possibility of dual prosecution in Indian country and details some of the potential consequences of the doctrine for Indian tribes and (mostly Indian) defendants. It further explains the implications for both tribal sovereignty and for individual defendants’ rights under the current system, discussing, in turn, issues that may arise when a tribal prosecution is followed by a federal prosecution and vice versa. Part IV concludes by offering several proposed reforms designed to mitigate the tribal sovereignty and fairness concerns this work identifies.