» Indian Law, SCOTUS Cases » Double Jeopardy Is Okay…If You Are a Native American

Double Jeopardy Is Okay…If You Are a Native American

If you are Native American and commit a criminal offense on an Indian reservation, it can be a crime in both the Indian community and the federal system. As a result of the United States Supreme Court’s decisions on the matter, the Indian Civil Rights Act, and subsequent legislation, Indians can go to jail (technically, there are no prisons on Indian reservations) and federal prison for the same crime. They can also be fined twice for the same criminal act.

The Supreme Court’s rationale is based on their interpretation of the source of Indian governments’ powers and how they interact with the U.S. Constitution. The Supreme Court was also understandably concerned that an Indian could quickly plead out in an Indian jurisdiction to avoid federal prosecution.

This often leads to confusing and frustrating problems for a criminal defense attorney practicing Indian law. A guilty plea for your client can be used against him in federal court. Although technically criminal convictions on Indian reservations are misdemeanors punishable by no more than one year per offense, it is not uncommon for an Indian to get many years due to the fact Community prosecutors like throwing as many chargeable offenses as possible at each defendant. If your client pleads guilty, you may have gotten a fair result, but he or she could then face a federal charges. You may have just handed your client to the federal prosecutor with a confession under oath.

This occasionally leads to a dance between jurisdictions regarding who is going to charge the case. It also leads to the questionable practice of the tribe charging a person and keeping them in jail on a high bond even though the prosecutor has no intention of proceeding with the case. Instead, the prosecutor has been told that the feds are going to charge it eventually, so they just hold on to the guy. I’ve seen this happen several times. It gives the feds as much time as they need to investigate while knowing that person they want to charge isn’t going anywhere.

I’ve also had cases were theclient was charged and convicted of the same act by both jurisdictions. Something about that doesn’t sit right with me at all. To make it even worse, I’ve had cases were the client was convicted, served time, and then was put on probation by the Indian community. Then the feds decide to charge him. The client learns of the charges and stops reporting to Indian probation because he knows the feds will be waiting for him. Honestly, I can’t blame him. He did a lot of time and feels he paid the price for his crime. The feds find him a few months later and he does more time and is put on federal probation. Then the Indian community files a petition to violate him for missing his probation appointments. The Indian probation department wants to put him in jail for two more years. If that happens it is entirely possible that the feds would then violate him because he violated his federal probation by either missing appointments (because he is in tribal jail) or for not following through with tribal probation. The end result is a person being put in a cage four times for one offense.

The case history for how and why this can exist is confusing. Here is a starting point for anyone interested in reading some case law. Something needs to be done to stop this injustice.

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3 Responses to "Double Jeopardy Is Okay…If You Are a Native American"

  1. Bird says:

    A question to ponder… If a tribal jail is not available and a county jail and minimum security prison is used… How does double jeopardy not apply for Native American victims?

  2. Joan Bundy says:

    I agree with much of what you said except the part about prosecutors “like throwing as many chargeable offenses as possible at each defendant.” Speaking from prior experience, we don’t “like” it but it is our job to properly charge someone. Yes, we have discretion and yes we don’t have to charge every offense that a person possibly is guilty of, but sometimes we know that the feds have declined prosecution (often without a reason or a legitimate reason) and we are stuck with trying to properly prosecute someone who is alleged to have committed federal felonies with only a misdemeanor jurisdiction. It’s not equitable for anybody: the defendants, the victims, the prosecutors or the defense attorneys. The whole system of dual jurisdiction is really racist and should not be allowed to continue in this day and age.

  3. Donte Russo says:

    I can’t believe this then again I can. It appears again the Native Americans are screwed by our “Free Country” what happened to equal protection ?

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