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.
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.
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,
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.
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.
That is the subject of this Article.
For decades, the Supreme Court has applied the dual-sovereignty doctrine to tribal prosecutions,
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.
Nevertheless, the on-the-ground application of the doctrine in Indian country
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.
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.
But remarkably little attention has been focused on the doctrine’s application to Indian country prosecutions.
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.
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.