U.S. v. Long

• Decision Date: 23 January 2002
• Docket Number: No. 01-CR-102.,01-CR-102.
• Citation: 183 F.Supp.2d 1106
• Parties: UNITED STATES of America, Plaintiff, v. Frank LONG, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

183 F.Supp.2d 1106

UNITED STATES of America, Plaintiff, v. Frank LONG, Defendant.

No. 01-CR-102.

United States District Court, E.D. Wisconsin.

January 23, 2002.

Brian E. Pawlak, Racine, WI, for plaintiff.

Brian P. Mullins, Milwaukee, WI, for defendant.

DECISION AND ORDER

ADELMAN, District Judge.

Defendant Frank Long, an American Indian, moves to dismiss a federal indictment on the ground that the prosecution of him by the United States violates the Double Jeopardy Clause because the Menominee Indian Tribe previously prosecuted and convicted him of the same offense. Magistrate Judge Patricia A. Gorence recommended that I deny the motion, and defendant objected to her recommendation. I review the portion of the recommendation to which defendant objected de novo. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 673-676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).¹

I. FACTUAL BACKGROUND

The relevant facts are not in dispute. On April 23, 2001, defendant, a 19 year old enrolled member of the Menominee Tribe, was charged in Menominee Tribal Court with stealing a truck owned by Edward J. Reiter on March 23, 2001. On May 15, 2001, a federal grand jury indicted him for the same theft, charging that on March 23, 2001, he took and carried away a blue Ford F150 pickup truck owned by Edward Reiter, an American Indian, in violation of 18 U.S.C. § 661 and 1153(a). On July 23, 2001, defendant pleaded no contest to the theft charge in tribal court and was sentenced to 120 days in the tribal jail.² Defendant subsequently appeared before a magistrate judge on the federal charge and moved to dismiss on double jeopardy grounds.

The unique history of the Menominee Tribe is also relevant to this case. Prior to the arrivals of Europeans, the Menominee people had a system for handling disputes that centered around a Peacemaker, generally a respected elder recognized for great wisdom. Hon. 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). After the establishment of the United States, the Tribe was granted a reservation in Wisconsin by the Treaty of Wolf River in 1854. State v. Webster, 114 Wis.2d 418, 421, 338 N.W.2d 474 (1983) (citing 10 Stat. 1064 (1854)). In the late 1800s the Bureau of Indian Affairs established a Court of Indian Offenses on the Menominee Reservation. This court was staffed by tribal judges appointed by the Bureau who operated under regulations promulgated by the Bureau and codified in the Code of Federal Regulations, 25 C.F.R. part 11. Tourtillott-Grochowski, supra.

For nearly a century, the Tribe was sovereign within its reservation trust lands, with the power to enforce its criminal laws against Tribe members through its courts. See generally Felix S. Cohen, Handbook of Federal Indian Law 231-35 (1982) (tribes began their relationship with the federal government with the sovereign powers of independent nations; upon coming under the authority of the United States, certain limitations on external powers followed, but the United States permitted then protected the tribes in their continued internal government).

On June 17, 1954, Congress enacted the Menominee Termination Act. Webster, 114 Wis.2d at 422, 338 N.W.2d 474 (citing Pub.L. No. 399, 68 Stat. 250 (1954)). "The purpose of the Termination Act was `to provide for orderly termination of Federal supervision over the property and members of the Menominee Indian Tribe of Wisconsin.'" Id. (quoting 68 Stat. at 250). On August 24, 1954, the same Congress also enacted Public Law 280, 18 U.S.C. § 1162, which transferred criminal jurisdiction over members of the Menominee Tribe from the federal government to the State of Wisconsin.³ See Latender v. Israel, 584 F.2d 817, 819 (7th Cir.1978). The result of these two laws was to terminate tribal sovereignty and to place Menominee tribal members accused of criminal conduct in the same position as other residents of the State of Wisconsin.⁴ See Menominee Tribe of Indians v. United States, 391 U.S. 404, 409, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Application of Nacotee, 389 F.Supp. 784, 785 (E.D.Wis.1975); see also Cohen, supra, at 175 ("The result [of termination] was that all criminal and civil cases were handled by state courts, and federal and tribal law were no longer applicable. . . . Another important practical effect of termination was to remove the sovereignty of terminated tribes.").

On December 22, 1973 Congress repealed the Termination Act by enacting the Menominee Restoration Act, 25 U.S.C. §§ 903-903f. The Act reinstated all "rights and privileges of the tribe or its members under Federal treaty, statute or otherwise which may have been diminished or lost pursuant to" the Termination Act. 25 U.S.C. § 903a(b). It further stated: "Nothing contained in this subchapter shall diminish any rights or privileges enjoyed by the tribe or its members now or prior to June 17, 1954, under Federal treaty, statute, or otherwise, which are not inconsistent with the provisions of this subchapter." 25 U.S.C. § 903a(c).

On March 1, 1976, the State of Wisconsin retroceded its criminal jurisdiction over the Menominee Reservation to the United States. Webster, 114 Wis.2d at 424, 338 N.W.2d 474. Thereafter, jurisdiction over crimes committed by Menominee Indians on the reservation (again) vested in the federal and tribal governments. State v. LaTender, 86 Wis.2d 410, 431, 273 N.W.2d 260 (1979).

A Court of Indian Offenses was then reestablished on the Reservation and functioned until 1979, at which time the Menominee Tribe established its own court system known as the Menominee Tribal Court. Tourtillott-Grochowski, supra. This is the court that convicted defendant.

II. DISCUSSION

The Double Jeopardy Clause of the Fifth Amendment provides that the government shall not put a person in jeopardy of life or limb twice "for the same offence." U.S. Const. amend. V. The clause affords a defendant three basic protections: (1) protection against successive prosecution for the same offense after acquittal; (2) protection against successive prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). When a defendant is successively prosecuted under two different statutes, the test for determining whether the prosecutions involve the same offense is whether each statute requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

Defendant argues that the United States is prosecuting him for the same offense that he was previously convicted of in the Menominee Tribal Court. The United States does not dispute that the tribal law under which defendant was convicted and the federal statute under which he is charged require proof of the same facts but argues that its prosecution of defendant is not barred because the Tribe and the United States are separate sovereigns. The Double Jeopardy Clause does not prohibit multiple prosecutions for the same conduct "when they are carried out by separate sovereigns." See United States v. Enas, 255 F.3d 662, 665-66 (9th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 925, ___ L.Ed.2d ___ (2002).

The question therefore is whether for double jeopardy purposes the Menominee Tribe is a separate sovereign from the United States. The Supreme Court addressed a similar question in United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), where the United States prosecuted an Indian who had previously been prosecuted for the same conduct by the Navajo Tribe. The Wheeler Court first reaffirmed the "well-established 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. The basis for this doctrine is that 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.'" Id. at 316, 98 S.Ct. 1079. This is so because each sovereign is able to define an "offence" according to its own laws. Therefore, the same act may be an "offence" under the laws of either, and an offender punished by both has not been punished twice for the same offence; rather, he has committed two offences. Id. at 317, 98 S.Ct. 1079 (citing Moore v. Illinois, 14 How. 13, 19-20, 14 L.Ed. 306).

However, the Court noted that the so-called dual sovereignty concept does not apply where successive cases are brought by nominally different prosecuting entities. Id. at 318, 98 S.Ct. 1079. For example, 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, id. at 318, 98 S.Ct. 1079, because a territorial government is a creation of Congress "and its judicial tribunals exert all their powers by authority of the United States." Grafton v. United States, 206 U.S. 333, 354, 27 S.Ct. 749, 51 L.Ed. 1084 (1907). "When a territorial government enacts and enforces criminal laws to govern its inhabitants, it is not acting as an independent political community like a State, but as `an agency of the federal government.'" Wheeler, 435 U.S. at 321, 98 S.Ct. 1079 (quoting Domenech v. Nat'l City Bank, 294 U.S. 199, 204-05, 55 S.Ct. 366, 79 L.Ed. 857 (1935)). Therefore, "successive prosecutions by federal and territorial courts are impermissible because such courts are `creations emanating from the same sovereignty.'" Id. at 318, 98 S.Ct. 1079 (quoting Puerto Rico v. Shell Co., 302 U.S. 253, 264-66, 58 S.Ct. 167, 82 L.Ed. 235 (1937)). Similarly, successive prosecutions by a city and the state of which it is a political subdivision for the same unlawful conduct violate the Double Jeopardy...