Does Double Jeopardy Occur Between Tribal and Other Courts?
Double jeopardy occurs when a defendant stands trial twice for the same offense. The
fifth and 14th amendments to the United States Constitution protect defendants in state/county
and federal courts against double jeopardy. Multiple prosecutions by separate jurisdictions for
the same crime are not counted as double jeopardy under the United States Constitution.7 Thus,
tribal and federal prosecutions may both continue, either simultaneously or in sequence, for the
same offense within non-PL 280 jurisdictions.8 However, some states, including more than half
of the states exercising jurisdiction under PL 280, have their own constitutional or statutory
protections against double jeopardy that apply even when the earlier prosecution was by a
separate government.
Double jeopardy occurs when a defendant stands trial twice for the same offense. The
fifth and 14th amendments to the United States Constitution protect defendants in state/county
and federal courts against double jeopardy. Multiple prosecutions by separate jurisdictions for
the same crime are not counted as double jeopardy under the United States Constitution.7 Thus,
tribal and federal prosecutions may both continue, either simultaneously or in sequence, for the
same offense within non-PL 280 jurisdictions.8 However, some states, including more than half
of the states exercising jurisdiction under PL 280, have their own constitutional or statutory
protections against double jeopardy that apply even when the earlier prosecution was by a
separate government.
Many states that have jurisdiction under PL 280 or like statutes have
determined that these protections extend to situations where the earlier prosecution was in tribal
court.9 Thus, if a tribe in one of these Public Law 280 jurisdictions entertains criminal
prosecutions, a subsequent state/county prosecution may violate state double-jeopardy
prohibitions.
When a double jeopardy situation arises, the jurisdictions that have a claim to try a
defendant for a crime may negotiate to establish which jurisdiction has precedence or authority
to conduct the trial. Double jeopardy cases may arise when tribal and state/county court
personnel are not communicating, or when actions in tribal courts are not honored or respected
by state/county courts. We asked respondents: Do you ever encounter double jeopardy issues?
200
7 Bartkus v. Illinois, 359 U.S. 121 (1959); Abbate v. United States, 359 U.S. 187 (1959).
8 United States v. Wheeler, 435 U.S. 313 (1978).
9 See Nell Newton et al., Cohen’’s Handbook of Federal Indian Law § 6.04[3][c] (2005 ed.).
determined that these protections extend to situations where the earlier prosecution was in tribal
court.9 Thus, if a tribe in one of these Public Law 280 jurisdictions entertains criminal
prosecutions, a subsequent state/county prosecution may violate state double-jeopardy
prohibitions.
When a double jeopardy situation arises, the jurisdictions that have a claim to try a
defendant for a crime may negotiate to establish which jurisdiction has precedence or authority
to conduct the trial. Double jeopardy cases may arise when tribal and state/county court
personnel are not communicating, or when actions in tribal courts are not honored or respected
by state/county courts. We asked respondents: Do you ever encounter double jeopardy issues?
200
7 Bartkus v. Illinois, 359 U.S. 121 (1959); Abbate v. United States, 359 U.S. 187 (1959).
8 United States v. Wheeler, 435 U.S. 313 (1978).
9 See Nell Newton et al., Cohen’’s Handbook of Federal Indian Law § 6.04[3][c] (2005 ed.).
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
Forty-four Public Law 280 reservation residents responded to the question and 8 (18.2%)
said they occasionally met with double jeopardy cases.
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
Forty-four Public Law 280 reservation residents responded to the question and 8 (18.2%)
said they occasionally met with double jeopardy cases.
Thirteen Public Law 280 criminal justice
workers commented, and 4 (28.6%) said they occasionally come across double jeopardy issues.
Some comments are:
Oh yeah, the arguments made, quite a bit. I think it’s pretty much a lost cause.
The argument is made more in the equity standpoint, though, than any kind of
hope of it being a successful, natural dismissal of the case or charge. Once the
defense attorney finds out that there is concurrent jurisdiction, much as there
would be in a federal court, and once you look at case laws, then it kind of shuts
down that argument. But the argument can still rest in terms of disposition of the
case where the defense attorney argues, "Your Honor, my client has already paid
$400 in tribal court, now you are asking him to pay another $800 in this court." It
would seem only fair for him to get some recognition of the fact that he paid $400
in another court. I think that it’s a fairly weighty argument, but it doesn’t rise to
level of double jeopardy ... and I don’t really know what that answer is,
workers commented, and 4 (28.6%) said they occasionally come across double jeopardy issues.
Some comments are:
Oh yeah, the arguments made, quite a bit. I think it’s pretty much a lost cause.
The argument is made more in the equity standpoint, though, than any kind of
hope of it being a successful, natural dismissal of the case or charge. Once the
defense attorney finds out that there is concurrent jurisdiction, much as there
would be in a federal court, and once you look at case laws, then it kind of shuts
down that argument. But the argument can still rest in terms of disposition of the
case where the defense attorney argues, "Your Honor, my client has already paid
$400 in tribal court, now you are asking him to pay another $800 in this court." It
would seem only fair for him to get some recognition of the fact that he paid $400
in another court. I think that it’s a fairly weighty argument, but it doesn’t rise to
level of double jeopardy ... and I don’t really know what that answer is,
but it has
been months and months, if not a year, since I have seen any argument about
double jeopardy.
Yes, and I have used that before actually (in a) state double jeopardy case. I was
getting examples of what various tribal codes had codified as crimes and what
their penalties were available, as compared to ours. So, it explained that if they
did find that double jeopardy applied, we could potentially have aggravated firstdegree murder as being (given a sentence in tribal court of) one year and $5000.
Three Public Law 280 law enforcement officers commented and 1 (33.3%) said s/he had
occasionally met with double jeopardy situations. Again, our data set is not large enough to
make reliable statements or interpretations.
been months and months, if not a year, since I have seen any argument about
double jeopardy.
Yes, and I have used that before actually (in a) state double jeopardy case. I was
getting examples of what various tribal codes had codified as crimes and what
their penalties were available, as compared to ours. So, it explained that if they
did find that double jeopardy applied, we could potentially have aggravated firstdegree murder as being (given a sentence in tribal court of) one year and $5000.
Three Public Law 280 law enforcement officers commented and 1 (33.3%) said s/he had
occasionally met with double jeopardy situations. Again, our data set is not large enough to
make reliable statements or interpretations.
The data collected suggest a trend in Public Law 280
jurisdictions, county law enforcement and criminal justice (31.3%) are somewhat more
conscious of double jeopardy situations than are Public Law 280 reservation residents (18.2%).
For non-Public Law 280 jurisdictions the data is still fewer and, hence, less reliable.
Seven non-Public Law 280 reservation residents responded, and 4 (57.1%) say they met with
double jeopardy incidents in tribal and federal courts. Three non-Public Law 280 criminal
justice workers commented, and none (0%) say they encountered double jeopardy cases in
federal courts. These data suggest a trend of greater concern over double jeopardy issues among
non-Public Law 280 reservation residents than Public Law 280 respondents and non-Public Law
280 criminal justice respondents, but the data are too few to make reliable interpretations. Given
that double jeopardy is not a legal problem as between tribal and federal prosecutions, it’s
understandable that non-PL 280 respondents would be less concerned about it.
jurisdictions, county law enforcement and criminal justice (31.3%) are somewhat more
conscious of double jeopardy situations than are Public Law 280 reservation residents (18.2%).
For non-Public Law 280 jurisdictions the data is still fewer and, hence, less reliable.
Seven non-Public Law 280 reservation residents responded, and 4 (57.1%) say they met with
double jeopardy incidents in tribal and federal courts. Three non-Public Law 280 criminal
justice workers commented, and none (0%) say they encountered double jeopardy cases in
federal courts. These data suggest a trend of greater concern over double jeopardy issues among
non-Public Law 280 reservation residents than Public Law 280 respondents and non-Public Law
280 criminal justice respondents, but the data are too few to make reliable interpretations. Given
that double jeopardy is not a legal problem as between tribal and federal prosecutions, it’s
understandable that non-PL 280 respondents would be less concerned about it.
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