Native American Sovereignty And Successive Prosecutions

An interesting article in today’s Wall Street Journal discusses a problem that is apparently faced by many Native Americans who are prosecuted by tribal courts. As sovereign nations, the tribes have the power to prosecute offenses committed within their borders; however, they share that power, at least to some extent, with the federal government. The tribes have their own prosecutors, judges and jails. But they lack something very important -- sufficient resources to provide legal counsel to indigent defendants. This lack of resources does not hamper prosecutions because, as sovereign nations, the tribes are not subject to the Sixth Amendment right to counsel. As a result, many defendants are convicted in tribal courts without counsel.

One could debate whether this is something that should bother us (on the one hand, those who live on reservations are also U.S. citizens; on the other, it may not be up to us to impose our view of what is appropriate on the tribes, who under our current system have quite rightly been afforded at least some modicum of self-government), and I do not take a position on that issue here. The thing that caught my eye relates to what happens after a tribal conviction. As the Journal reports, although the federal government is responsible “for prosecuting major crimes committed by Native Americans on tribal land, such as murder, rape and arson”, “federal prosecutors regularly decline these cases” and leave them to the tribes to prosecute. This might not be such a big deal, except that apparently sometimes the federal prosecutors come back to charge a federal crime after the defendant has been convicted (without counsel) in the tribal court.

The Journal article refers to a 2004 case in which the Supreme Court ruled (7-2) that such a second prosecution does not constitute double jeopardy. The case, U.S. v. Lara, 541 U.S. 193 (2004), turns primarily on a conclusion that the source of a tribe’s authority to prosecute offenses on tribal land is its inherent sovereignty, rather than a delegated federal power. Because the successive prosecutions are carried out by separate sovereigns, there is no double jeopardy problem. Any objection to the absence of counsel in the first trial would be a due process objection to the first proceeding that has no bearing on whether or not that prosecution was undertaken by a separate sovereign. Although this is unfortunate for the defendant, in the end I don’t think it’s terribly controversial as far as it goes.

But within the Lara facts there seems to lurk a problem, to which the Journal article also alludes, that is not addressed in any of the five opinions issued by the Court (one majority, three separate concurrences, and one dissent). Mr. Lara was a member of the Turtle Mountain Band of Chippewa Indians, who married a member of the Spirit Lake Tribe and lived on that tribe’s reservation with his wife and children. He got into various trouble there, and the tribe ultimately issued an “order excluding him from the reservation.” He ignored this order, and was in the process of being arrested by a federal officer when he assaulted that officer. He was prosecuted by the tribe, without counsel, and pleaded guilty to the tribal crime of “violence to a policeman.”* The federal government thereafter charged him with assaulting a federal officer, a crime whose elements “mirror” those of the tribal crime. The uncounseled guilty plea in tribal court thus essentially made the case for the federal prosecutors.

This is quite plainly not a matter that failed to come to the attention of federal prosecutors until after the tribal conviction. A federal officer was the victim of the crime. The federal government’s interest in prosecuting the offense was at least as strong as that of the tribe. Yet the federal prosecutors let the tribal proceeding go first, with the result that when it was their “turn” they had a nice (uncounseled) plea allocution that apparently gave them all they needed for a federal conviction. Could that possibly be fair?

The fact that a person can be prosecuted by a tribe and by the federal government is in theory no different from the fact that a person can be prosecuted at the state level and at the federal level. I agree that double jeopardy is not the problem here. Maybe the right question is whether the results of the uncounseled prosecution should be usable in a subsequent federal proceeding if the federal authorities had the opportunity to prosecute first and specifically deferred to the tribe. In any event, in light of the manner in which tribal proceedings are conducted, it seems to me that a strategic decision to let them go first and then use their results to support a subsequent federal prosecution raises constitutional questions that are not addressed in Lara, and may well find their way back to the Court.

*For a further discussion of the issues raised by the fact that the tribes can prosecute a member of any tribe (as opposed to only their own members) but cannot prosecute anyone else, see Means v. Navajo Nation, 432 F.3d 924 (9th Cir. 2005).