NCJ Number
65657
Journal
South Dakota Law Review Volume: 17 Dated: (SPRING 1972) Pages: 341-349
Date Published
1972
Length
9 pages
Annotation
THIS ARTICLE FOCUSES ON THE CONSTITUTIONAL ISSUE OF DOUBLE JEOPARDY AS IT RELATES TO A RESERVATION INDIAN WHO IS SUBJECT TO THE CRIMINAL SANCTIONS OF BOTH THE FEDERAL GOVERNMENT AND HIS TRIBE.
Abstract
IN THE EXERCISE OF ITS PLENARY POWER OVER INDIAN AFFAIRS, CONGRESS HAS LARGELY EXCLUDED, UNTIL RECENTLY, STATE JURISDICTION SINCE FEDERAL COURTS HAVE LIMITED JURISDICTION, A JURISDICTIONAL VACUUM HAS RESULTED AND HAS BEEN FILLED BY THE EXERCISE OF TRIBAL JURISDICTION. CRIMINAL JURISDICTION IN THE FIELD OF INDIAN LAW INVOLVES A DIVISION OF AUTHORITY AMONG FEDERAL, INDIAN, AND STATE COURTS. EXCEPT WHERE WITHDRAWN BY CONGRESS IN THE EXERCISE OF ITS PLENARY POWERS OVER INDIAN AFFAIRS, JURISDICTION OVER CRIMINAL OFFENSES BY INDIANS IN INDIAN COUNTRY RESTS WITH INDIAN TRIBES. GENERALLY SPEAKING, SINCE 1885, WHEN THE SEVEN MAJOR CRIMES ACT WAS PASSED, INDIAN TRIBAL OFFENSES ARE OF THE MISDEMEANOR TYPE, WHILE INDIANS ARE USUALLY PROSECUTED FOR FELONIES IN FEDERAL DISTRICT COURTS. COURTS HAVE BEEN RELUCTANT TO EXPAND THE AREA OF MAJOR CRIMES UNLESS CONGRESS SPECIFICALLY AND CLEARLY SPEAKS IN THAT AREA. AN INDIAN LIVING ON A RESERVATION IS THUS SUBJECT TO THE LAWS OF THE TRIBE AND THE LAWS OF THE UNITED STATES. YET THE COURTS HAVE UPHELD THAT DOUBLE JEOPARDY DOES NOT AUTOMATICALLY ATTACH BECAUSE THERE IS A TRIBAL CONVICTION OF AN INDIAN DEFENDANT. MOREOVER, THEY HAVE NOT RULED SQUARELY ON THE APPLICABILITY OF THE SEPARATE SOVEREIGN THEORY, SINCE MOST TRIBAL VIOLATIONS ARE MISDEMEANORS AND FEDERAL VIOLATIONS, FELONIES. THIS DISTINCTION INDICATES THAT THE SEPARATE OFFENSES WOULD NECESSARILY INCLUDE DIFFERENT ELEMENTS. A RECENT APPEAL TO THE EIGHTH CIRCUIT MAY REQUIRE THE COURT TO INDIRECTLY ANSWER THE SEPARATE SOVEREIGN ISSUE. IN THAT CASE THE DEFENDANT CONTENDED THAT HIS PRIOR ACQUITTAL ON A TRIBAL CHARGE OF DRIVING WHILE INTOXICATED ESTOPS THE FEDERAL GOVERNMENT FROM PROSECUTING ON A MANSLAUGHTER CHARGE. THE COURT OF APPEALS MAY BE REQUIRED TO DECIDE WHETHER THE FEDERAL GOVERNMENT AND TRIBE ARE THE SAME PARTIES AS SET OUT IN THE DEFINITION OF COLLATERAL ESTOPPEL, AND IT IS DIFFICULT TO PREDICT THE OUTCOME OF WHAT THE EIGHTH CIRCUIT HAS CHARACTERIZED AS A NOVEL AND TROUBLESOME QUESTION. FOOTNOTES ARE GIVEN. (MJW)