U.S. v. Long

• Decision Date: 20 March 2003
• Docket Number: No. 02-1473.,02-1473.
• Citation: 324 F.3d 475
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Frank LONG, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 475

324 F.3d 475

UNITED STATES of America, Plaintiff-Appellant, v. Frank LONG, Defendant-Appellee.

No. 02-1473.

United States Court of Appeals, Seventh Circuit.

Argued September 6, 2002.

Decided March 20, 2003.

Richard A. Friedman (argued), DOJ, Crim. Div., App. Sec., Washington, DC, for Plaintiff-Appellant.

Brian P. Mullins (argued), Federal Defender Services of Eastern Wisconsin., Inc., Milwaukee, WI, for Defendant-Appellee.

Before POSNER, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

The narrow question in this case is whether Frank Long, a member of the Menominee Tribe of Wisconsin, can be prosecuted by the United States for the same conduct that was the subject of an earlier tribal prosecution. In order to resolve that issue, however, we must consider the scope of the sovereignty the Menominee Tribe currently enjoys. If the Menominee prosecution is properly characterized as one flowing from independent sovereign powers, then there is no Double Jeopardy bar to the subsequent federal prosecution. If, on the other hand, the Menominee were acting solely under powers delegated by Congress, then the first prosecution will stand as a bar to the second.

This is a difficult question of first impression in a long line of cases dealing with Indian sovereignty beginning as early as the days of Chief Justice John Marshall.¹ The district court concluded that because the Tribe's powers were first eliminated, and then later restored by act of Congress, its prosecution of Long was undertaken as an arm of the federal government. It therefore dismissed the federal indictment in the present case, relying on the Fifth Amendment's Double Jeopardy Clause. We have come to the opposite conclusion about the source of authority that lay behind the Tribe's prosecution. In our view, the Tribe was exercising its own sovereign power, and thus the dual sovereignty exception to the Double Jeopardy Clause authorizes the sequential federal and tribal prosecutions. We therefore reverse the district court's decision and remand for further proceedings.

I

In April 2001, defendant Long stole a pick-up truck on the Menominee Reservation in Keshena, Wisconsin, and crashed it into a tree. Both Long and the truck's owner are members of the Menominee Indian Tribe. Long was first convicted of theft and malicious mischief in a Menominee tribal court, which handed down a sentence of 120 days in tribal jail after he pleaded no-contest to the theft charge. At the behest of tribal authorities who were frustrated by Long's recidivism, a federal grand jury in the Eastern District of Wisconsin indicted Long for the same theft. Federal jurisdiction was premised on 18 U.S.C. § 1153(a), the Indian Major Crimes Act, which grants federal jurisdiction over fourteen enumerated crimes, including larceny, committed on Indian reservations by Indians. See also 18 U.S.C. § 661 (federalizing the crime of larceny within the United States's territorial jurisdiction).

Long moved to dismiss the federal indictment on double jeopardy grounds and alternatively asked that the court abstain from exercising jurisdiction. The magistrate judge recommended denying both aspects of his motion. The district court agreed in part, finding that the case did not warrant the extraordinary step of abstention, but it concluded that the subsequent federal prosecution violated the Double Jeopardy Clause, and for that reason it dismissed the indictment. The government has appealed, as is its right under 18 U.S.C. § 3731. The abstention ruling is not before us, as Long has not filed a cross-appeal from that aspect of the court's decision. We note, however, that a federal court generally may not choose to "abstain" from exercising its jurisdiction in a criminal prosecution.

II

Although the post-colonial story of the Menominee Indians has been recounted in detail on numerous occasions, we find it useful for purposes of evaluating the arguments before us to review some of the high points. See, e.g., Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 452-53 (7th Cir.1998) (discussing treaty history between Menominee Tribe and United States government); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 353-54 (7th Cir.1983) (historical overview); Sturdevant v. Wilber, 464 F.Supp. 327, 328 (E.D.Wis. 1979) (discussing termination and restoration); State v. Webster, 114 Wis.2d 418, 338 N.W.2d 474, 476-77 (1983) (discussing state jurisdiction over Menominee Tribe and reservation).

The Tribe's 276,000 acre reservation, located at the mouth of the Oconto and Wolf rivers in Wisconsin, was created by the Treaty of Wolf River in 1854. See Menominee Indian Tribe, 161 F.3d at 453; Menominee Tribe of Indians v. United States, 391 U.S. 404, 405, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). The Tribe existed as a quasi-sovereign entity within the borders of its Indian reservation for nearly 100 years, during which time it exercised sovereign powers over internal reservation affairs. Among other things, the Menominee fully funded a hospital on the reservation and operated a sustainable yield logging business. See Patty Loew, Indian Nations of Wisconsin, 32-34 (2001). See also Felix S. Cohen, Handbook of Federal Indian Law, 231-35 (1982) (general discussion of tribal sovereignty over internal affairs). Of central importance to our case was the existence of a full-blown Menominee judicial system, which had jurisdiction over civil and criminal matters. Prior to the late 1800s, when the Bureau of Indian Affairs (BIA) established a Court of Indian Offenses on the Menominee Reservation, the Tribe operated a system of dispute resolution that was based on ancient practices involving a Peacemaker, or respected tribal elder. See Stephen M. Tourtillott-Grochowski, Profile, Menominee Tribal Court, in On Common Ground: A Meeting of State, Federal and Tribal Courts § 2 (Mar. 11-12 1999). The BIA Court of Indian Offenses that replaced the Menominee dispute resolution system employed Bureau-appointed judges and magistrates who applied Bureau-made rules and regulations. Id.

The BIA Court was abolished when jurisdiction over crimes committed on Menominee lands was transferred to the state of Wisconsin (discussed in further detail below), but that jurisdiction was restored in 1973 through a shift in federal law that paved the way for the re-establishment of the Court of Indian Offenses. That court remained active until 1979 when the Tribe set up the Menominee Tribal Court. Tourtillot-Grochowski, supra. Today, the Menominee Tribal Court is comprised of a Supreme Court with three sitting Justices, as well as two lower courts presided over by two trial judges. Id. The combined system processed nearly 7,000 cases in 1997. Id.

III

Our review of the dismissal of Long's federal indictment under the Double Jeopardy Clause is de novo. United States v. Furlett, 974 F.2d 839, 842 (7th Cir.1992). It is apparent that this case raises complex questions about the scope of the Double Jeopardy Clause, tribal sovereignty, and Congress's power to regulate Indian tribes. Together, these points add up to an interesting question of first impression for this court, namely, whether successive prosecutions by an Indian tribal court and the federal government fall within the dual sovereignty exception to the Double Jeopardy Clause if the tribal prosecution is undertaken by a tribe that was the subject of an Act of Congress terminating federal supervision over the property and members of the tribe, and whose powers were later legislatively restored. The Supreme Court expressly declined to address this question in United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), where it issued the following disclaimer:

By emphasizing that the Navajo Tribe never lost its sovereign power to try tribal criminals, we do not mean to imply that a tribe which was deprived of that right by Act of Congress would necessarily be an arm of the Federal Government. That interesting question is not before us, and we express no opinion thereon.

435 U.S. at 329 n. 28, 98 S.Ct. 1079. In fact, until this case, this precise question had not been decided by any court.

A. The Dual Sovereignty Doctrine

The Fifth Amendment's Double Jeopardy Clause states 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. The Supreme Court has interpreted the clause as prohibiting not only multiple punishments for the same crime, but also multiple prosecutions as well. See United States v. Dixon, 509 U.S. 688, 695-96, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). One significant limitation exists, however, to the protection afforded by the Double Jeopardy Clause. It is known as the dual sovereignty doctrine, under which courts recognize that the Clause is no bar to serial prosecution and punishment undertaken by separate sovereign entities. Heath v. Alabama, 474 U.S. 82, 88, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). As the Supreme Court in Heath explained,

[T]he dual sovereignty doctrine is founded on the common-law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offences."

Id. at 88, 106 S.Ct. 433.

In analyzing whether sequential prosecutions are undertaken by separate sovereign bodies, courts must determine whether the prosecuting "entities draw their authority to punish the offender from distinct sources of power." Id. A classic application of the dual sovereignty doctrine is the case of successive prosecutions by a state and the federal government. In United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922), the Supreme Court concluded that separate prosecutions under the National Prohibition Act and state law did not violate the...