USA. v. Enas

• Decision Date: 07 December 1999
• Docket Number: PLAINTIFF-APPELLANT,No. 99-10049,DEFENDANT-APPELLEE,99-10049
• Citation: 255 F.3d 662
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. MICHAEL L. ENAS,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 662

255 F.3d 662 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT, v. MICHAEL L. ENAS, DEFENDANT-APPELLEE.

No. 99-10049

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 7, 1999--San Francisco, California

Rehearing En Banc Granted February 28, 2000

Argued and Submitted September 20, 2000--San Francisco, California

En Banc Opinion Filed June 29, 2001

[Copyrighted Material Omitted]

Richard A. Friedman, United States Department of Justice, Washington, D.C., for plaintiff-appellant United States.

Sigmund G. Popko, Assistant Federal Public Defender, Phoenix, Arizona, for defendant-appellee Michael L. Enas. John Trebon, Trebon & Fine, P.C., Flagstaff, Arizona, for amicus curiae Russell Means.

Appeal from the United States District Court for the District of Arizona Roger G. Strand, District Judge, Presiding D.C. No. CR-00215-1-RGS

BEFORE: Harry Pregerson, Diarmuid F. O'Scannlain, Stephen S. Trott, Thomas G. Nelson, Andrew J. Kleinfeld, A. Wallace Tashima, Sidney R. Thomas, Barry G. Silverman, M. Margaret McKeown, William A. Fletcher, and Richard C. Tallman, Circuit Judges.

The opinion of the court was delivered by: McKEOWN, Circuit Judge.

Opinion by Judge McKeown; Concurrence by Judge Pregerson

OPINION

This case sits at the intersection of two complicated bodies of law: the dual sovereignty exception to double jeopardy, and the sovereign power of Indian tribes. We must determine whether an Indian tribe and the federal government may twice prosecute a "non-member Indian"¹ for the same conduct without offending the Double Jeopardy Clause. Our answer lies in the distinction between the "inherent" and"delegated" power of Indian tribes. If the tribe was acting pursuant to its inherent power when it prosecuted Enas, then the dual prosecutions were undertaken by separate sovereigns, and were therefore constitutionally permissible. If, however, the tribe was exercising power delegated by Congress, then it was acting as an "arm of the federal government," United States v. Wheeler, 435 U.S. 313, 328 (1978), rather than employing its own sovereign authority, and the federal prosecution is barred. We conclude that under the 1990 amendments to the Indian Civil Rights Act, Indian tribes prosecute non-member Indians pursuant to their inherent power. Therefore, the twin prosecutions were constitutional, and we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

The seeds of this litigation were planted on August 18, 1994, when Defendant-Appellee Michael L. Enas stabbed Joseph Kessay while on reservation land governed by the White Mountain Apache Tribe ("the Tribe"). Enas is an enrolled member of the San Carlos Apache Tribe (and therefore is a "non-member Indian" vis-a-vis the Tribe); Kessay is an enrolled member of the Tribe. The Tribe charged Enas with assault with a deadly weapon, and assault with intent to cause serious bodily injury, violations of Tribal Code sections 2.4 and 2.6. One day after the assaults, Enas pled guilty to the former charge, and was sentenced to 180 days in jail and fined $1180. About two weeks later, while on a work-release program, Enas failed to return to custody.

On June 21, 1995, during the time that Enas was on escape status, a federal grand jury returned new charges stemming from the stabbing. Enas was indicted for assault with a dangerous weapon, and assault resulting in serious bodily injury. See 18 U.S.C. §§§§ 113(c), 113(f), 1153.² The parties do not dispute that the indictment charged the same conduct for which Enas had already been prosecuted, convicted, and sentenced by the tribal court. On Enas's motion, the district court dismissed the federal indictment. Relying on our decision in Means v. Northern Cheyenne Tribal Court, 154 F.3d 941 (9th Cir. 1998), the district court held that the Tribe prosecuted Enas pursuant to power delegated by Congress; that the Tribe was "the same sovereign as the United States" for purposes of the prosecution; and that, therefore, the Double Jeopardy Clause barred the federal government from prosecuting Enas in federal court.

A three-judge panel of this court reversed the district court. We took this case en banc in order to examine the interplay among the Supreme Court's decision in Duro v. Reina, 495 U.S. 676 (1990); Means; the ICRA; and the circumstances of this case. See United States v. Enas, 204 F.3d 915 (9th Cir.), withdrawn and reh'g en banc granted, 219 F.3d 1138 (9th Cir. 2000). We review de novo the various questions of law presented here. See United States v. Byrne, 203 F.3d 671, 673 (9th Cir. 2000) (double jeopardy); Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1182 (9th Cir. 2000) (statutory interpretation).

II. DISCUSSION

A. THE DOUBLE JEOPARDY CLAUSE AND THE DUAL SOVEREIGNTY EXCEPTION

The Double Jeopardy Clause provides that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This constitutional guarantee provides three forms of protection: It prohibits "a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense." Dep't of Revenue v. Kurth Ranch, 511 U.S. 767, 769 n.1 (1994).

The Double Jeopardy Clause, however, contains a significant exception. Multiple prosecutions are permissible when they are carried out by separate sovereigns. The rationale for this principle rests with our traditional conception of what constitutes a "crime." At common law, a crime was defined as "an offense against the sovereignty of the government." Thus, a single act that violates the laws of two sovereigns constitutes two separate crimes. As a result, successive prosecutions by multiple sovereigns for that single act do not violate the Double Jeopardy Clause. Heath v. Alabama, 474 U.S. 82, 88 (1985).

Our task, then, is to determine whether the two entities that prosecuted Enas are "separate sovereigns" for purposes of the prosecution. In order to do so, we must identify"the ultimate source of the power under which the respective prosecutions were undertaken." Wheeler, 435 U.S. at 320; accord Heath, 474 U.S. at 88. In certain contexts, this analysis is fairly simple. For instance, it is clearly established that state and federal governments each prosecute pursuant to their own sovereign power. Thus, multiple prosecutions among these entities are permissible. A federal prosecution may follow a state prosecution for the same acts. United States v. Lanza , 260 U.S. 377, 382 (1922) ("[A]n act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each."). Likewise, one state may prosecute crimes already punished by another. Heath, 474 U.S. at 89. By contrast, the Double Jeopardy Clause prohibits successive prosecutions by federal and territorial governments, because "the territorial and federal laws and the courts, whether exercising federal or local jurisdiction, are creations emanating from the same sovereignty." Puerto Rico v. Shell Co. (P.R.), Ltd., 302 U.S. 253, 264 (1937).

This inquiry into the source of the prosecuting power becomes somewhat more complicated in the context that confronts us here--namely, the nature and scope of tribal sovereign power. We turn now to that subject.

B. TRIBAL SOVEREIGNTY, "INHERENT POWER," AND "DELEGATION"

Indian tribes pose special concerns in the context of double jeopardy. The difficulty arises because Indian tribes exercise multiple forms of power, stemming from different sources, that have different implications for double jeopardy. On the one hand, the tribes are autonomous sovereigns. As such, they retain all power that is not "inconsistent with their status" as "conquered and dependent" nations. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 196 (1978). This form of authority, described as "inherent," Wheeler, 435 U.S. at 323, or "retained," id. at 327; Duro, 495 U.S. at 679, comprises the power "needed to control [the tribes'] own internal relations, and to preserve their own unique customs and social order," Duro, 495 U.S. at 685-86.

On the other hand, tribal autonomy is not sovereignty in the ordinary sense. It "exists only at the sufferance of Congress and is subject to complete defeasance." Wheeler, 435 U.S. at 323. Congress can limit tribal power and, conversely, can add to it. When Congress bestows additional power upon a tribe--augments its sovereignty, one might say--this additional grant of power is referred to as "delegation." Duro, 495 U.S. at 687; Wheeler, 435 U.S. at 328; Oliphant, 435 U.S. at 208.

This dichotomy between inherent and delegated power has important implications for double jeopardy. When a tribe exercises inherent power, it flexes its own sovereign muscle, and the dual sovereignty exception to double jeopardy permits federal and tribal prosecutions for the same crime. By contrast, when a tribe exercises power delegated to it by Congress, the Double Jeopardy Clause prohibits duplicative tribal and federal prosecutions. The Supreme Court has been consistent in maintaining the distinction between inherent and delegated power, and in holding that these two forms of power have different consequences for double jeopardy. Thus, in Wheeler, the Court considered dual sovereignty double jeopardy in the context of a tribe's criminal prosecution of a tribal member. In so doing, it described the question before it as follows:

[The tribe's] right of internal self-government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions. . . . [T]he controlling question in this case is the source of this power to punish tribal offenders: Is it a part of inherent tribal sovereignty, or an aspect of the sovereignty of the Federal Government which has been delegated to the tribes by Congress?

435 U.S. at 322 (internal citations omitted)....