435 U.S. 313 (1978), 76-1629, United States v. Wheeler

Docket Nº:No. 76-1629
Citation:435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303
Party Name:United States v. Wheeler
Case Date:March 22, 1978
Court:United States Supreme Court

Page 313

435 U.S. 313 (1978)

98 S.Ct. 1079, 55 L.Ed.2d 303

United States



No. 76-1629

United States Supreme Court

March 22, 1978

Argued January 11, 1978




Respondent, a member of the Navajo Tribe, pleaded guilty in Tribal Court to a charge of contributing to the delinquency of a minor, and was sentenced. Subsequently, he was indicted by a federal grand jury for statutory rape arising out of the same incident. He moved to dismiss the indictment on the ground that, since the tribal offense of contributing to the delinquency of a minor was a lesser included offense of statutory rape, the Tribal Court proceeding barred the subsequent federal prosecution. The District Court granted the motion, and the Court of Appeals affirmed, holding that, since tribal courts and federal district courts are not "arms of separate sovereigns," the Double Jeopardy Clause of the [98 S.Ct. 1081] Fifth Amendment barred respondent's federal trial.

Held: The Double Jeopardy Clause does not bar the federal prosecution. Pp. 316-332.

(a) The controlling question is the source of an Indian tribe's power to punish tribal offenders, i.e., whether it is a part of inherent tribal sovereignty or an aspect of the sovereignty of the Federal Government that has been delegated to the tribes by Congress. Pp. 316-322.

(b) Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. Pp. 322-323.

(c) Here, it is evident from the treaties between the Navajo Tribe and the United States and from the various statutes establishing federal criminal jurisdiction over crimes involving Indians, that the Navajo Tribe has never given up its sovereign power to punish tribal offenders, nor has that power implicitly been lost by virtue of the Indians' dependent status; thus, tribal exercise of that power is presently the continued exercise of retained tribal sovereignty. Pp. 323-326.

(d) Moreover, such power is not attributable to any delegation of federal authority. Pp. 326-328.

(e) When an Indian tribe criminally punishes a tribe member for violating tribal law, the tribe acts as an independent sovereign, and not as an arm of the Federal Government, Talton v. Mayes, 163 U.S. 376, and since tribal and federal prosecutions are brought by separate sovereigns,

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they are not "for the same offence," and the Double Jeopardy Clause thus does not bar one when the other has occurred. Pp. 328-330.

(f) To limit the "dual sovereignty" concept to successive state and federal prosecutions, as respondent urges, would result, in a case such as this, in the "undesirable consequences" of having a tribal prosecution for a relatively minor offense bar a federal prosecution for a much graver one, thus depriving the Federal Government of the right to enforce its own laws; while Congress could solve this problem by depriving Indian tribes of criminal jurisdiction altogether, this abridgment of the tribes' sovereign powers might be equally undesirable. See Abbate v. United States, 359 U.S. 187. Pp. 330-332.

545 F.2d 1255, reversed and remanded.

STEWART, J., delivered the opinion of the Court, in which all other Members joined except BRENNAN, J., who took no part in the consideration or decision of the case.

STEWART, J., lead opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

The question presented in this case is whether the Double Jeopardy Clause of the Fifth Amendment bars the prosecution of an Indian in a federal district court under the Major Crimes Act, 18 U.S.C. § 1153, when he has previously been convicted in a tribal court of a lesser included offense arising out of the same incident.


On October 16, 1974, the respondent, a member of the Navajo Tribe, was arrested by a tribal police officer at the Bureau of Indian Affairs High School in Many Farms, Ariz. on the Navajo Indian Reservation.1 He was taken to the

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tribal jail in Chinle, Aris., and charged with disorderly conduct, in violation of Title 17, § 351, of the Navajo Tribal Code (1969). On October 18, two days after his arrest, the respondent [98 S.Ct. 1082] pleaded guilty to disorderly conduct and a further charge of contributing to the delinquency of a minor, in violation of Title 17, § 321, of the Navajo Tribal Code (1969). He was sentenced to 15 days in jail or a fine of $30 on the first charge and to 60 days in jail (to be served concurrently with the other jail term) or a fine of $120 on the second.2

Over a year later, on November 19, 1975, an indictment charging the respondent with statutory rape was returned by a grand jury in the United States District Court for the District of Arizona.3 The respondent moved to dismiss this

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indictment, claiming that, since the tribal offense of contributing to the delinquency of a minor was a lesser included offense of statutory rape,4 the proceedings that had taken place in the Tribal Court barred a subsequent federal prosecution . See Brown v. Ohio, 432 U.S. 161. The District Court, rejecting the prosecutor's argument that "there is not an identity of sovereignties between the Navajo Tribal Courts and the courts of the United States," dismissed the indictment.5 The Court of Appeals for the Ninth Circuit affirmed the judgment of dismissal, concluding that, since "Indian trial courts and United States district courts are not arms of separate sovereigns," the Double Jeopardy Clause barred the respondent's trial. 545 F.2d 1255, 1258. We granted certiorari to resolve an inter-circuit conflict. 434 U.S. 816.6


In Bartkus v. Illinois, 359 U.S. 121, and Abbate v. United States, 359 U.S. 187, this Court reaffirmed the well established

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principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and a state prosecution does not bar a federal one.7 The basis for this doctrine is that [98 S.Ct. 1083] prosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, "subject [the defendant] for the same offence to be twice put in jeopardy":

An offence, in its legal signification, means the transgression of a law. . . . Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. . . . That either or both may (if they see fit) punish such an offender cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence, but only that, by one act, he has committed two offences, for each of which he is justly punishable.

Moore v. Illinois, 14 How. 13, 19-20.

It was noted in Abbate, supra at 195, that the "undesirable consequences" that would result from the imposition of a double jeopardy bar in such circumstances further support the

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"dual sovereignty" concept. Prosecution by one sovereign for a relatively minor offense might bar prosecution by the other for a much graver one, thus effectively depriving the latter of the right to enforce its own laws.8 While, the Court said, conflict might be eliminated by making federal jurisdiction exclusive where it exists, such a "marked change in the distribution of powers to administer criminal justice" would not be desirable. Ibid.

The "dual sovereignty" concept does not apply, however, in every instance where successive cases are brought by nominally different prosecuting entities. Grafton v. United States, 206 U.S. 333, held that a soldier who had been acquitted of murder by a federal court-martial could not be retried for the same offense by a territorial court in the Philippines.9 And Puerto Rico v. Shell Co., 302 U.S. 253, 264-266, reiterated that successive prosecutions by federal and territorial courts are impermissible, because such courts are "creations emanating from the same sovereignty." Similarly, in Waller v. Florida, 397 U.S. 387, we held that a city and the State of which it

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is a political subdivision could not bring successive prosecutions for unlawful conduct growing out of the same episode, despite the fact that state law treated the two as separate sovereignties.

The respondent contends, and the Court of Appeals held, that the "dual sovereignty" [98 S.Ct. 1084] concept should not apply to successive prosecutions by an Indian tribe and the United States, because the Indian tribes are not themselves sovereigns, but derive their power to punish crimes from the Federal Government. This argument relies on the undisputed fact that Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government. Winton v. Amos, 255 U.S. 373, 391-392; In re Heff, 197 U.S. 488, 498-499; Lone Wolf v. Hitchcock, 187 U.S. 553; Talton v. Mayes, 163 U.S. 376, 384. Because of this all-encompassing federal power, the respondent argues that the tribes are merely "arms of the federal government"10 which, in the words of his brief, "owe their existence and vitality solely to the political department of the federal government."

We think that the respondent and the Court of Appeals, in relying on federal control over Indian tribes, have misconceived the distinction between those cases in which the "dual sovereignty" concept is applicable and those in which it is not. It is true that territories are subject to the ultimate control of Congress,11 and cities to the control of the State which created them.12 But that fact was not relied upon as the basis for the...

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