USA v. Enas

• Decision Date: 28 February 2000
• Docket Number: No. 99-10049,99-10049
• Citation: 204 F.3d 915
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. MICHAEL L. ENAS, OPINION Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 915

204 F.3d 915 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. MICHAEL L. ENAS, OPINION Defendant-Appellee.

No. 99-10049

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 7, 1999

Decided February 28, 2000

COUNSEL: Diane Humetewa, Assistant United States Attorney, Phoenix, Arizona; and Richard A. Friedman, United States Department of Justice, Washington, D.C., for the plaintiff-appellant.

Sigmund G. Popko, Assistant Federal Public Defender, Phoenix, Arizona, for the defendant-appellee.

Appeal from the United States District Court for the District of Arizona. Roger G. Strand, District Judge, Presiding. D.C. No. CR-95-00215-1-RGS

Before: Myron H. Bright,^* Harry Pregerson, and William A. Fletcher, Circuit Judges.

BRIGHT, Circuit Judge:

An Indian tribal court convicted Michael Enas, a nonmember Indian, on two charges of assault. When the government of the United States subsequently indicted Enas for the same crimes, the district court dismissed the indictment holding that the second prosecution would violate the Fifth Amendment's prohibition against double jeopardy. The government appeals.

The outcome of this case depends on whether the tribal court's criminal jurisdiction over Michael Enas, a nonmember Indian, rests on inherent tribal sovereignty or, alternatively, whether the federal government has delegated that power to the tribe. If the tribe is exercising sovereign power, there is no double jeopardy because the prosecutions emanate from two different sovereigns. However, if the tribe is exercising a federally delegated power of criminal jurisdiction, the Double Jeopardy Clause will bar the federal prosecution because both prosecutions would stem from the same sovereign entity: the federal government. The district court held that the tribe's power to prosecute Enas derived from and was delegated by the federal government and, therefore, that the Double Jeopardy Clause barred the second prosecution. We disagree and reverse.

I. BACKGROUND

Michael L. Enas is an enrolled member of the San Carlos Apache Tribe. On August 18, 1994, Enas stabbed Joseph Kessay while on land governed by the White Mountain Apache Tribe ("Tribe"). The Tribe prosecuted Enas for assault with a deadly weapon and for assault with intent to cause serious bodily injury, violations of Tribal Code SS 2.4 and 2.6, respectively. Enas pled guilty to both charges, and the tribal court sentenced him to 180 days in prison, with a fine of $1180.

On June 21, 1995, the government indicted Enas for assault with a dangerous weapon and assault resulting in serious bodily injury pursuant to 18 U.S.C. SS 113(a)(3) and (6), and S 1153. The district court dismissed the indictment, relying on Means v. Northern Cheyenne Tribal Court, 154 F.3d 941, 946 (9th Cir. 1998). Means held that certain 1990 amendments to the Indian Civil Rights Act ("ICRA") may not be applied retroactively. The 1990 amendment at issue in both this case and in Means, is S 1301(2), which provides that the "powers of self-government" of the Indian tribes means "the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians. " 25 U.S.C. S 1301(2). In its decision, the Means court said, "The only way to treat the 1990 ICRA amendments is as an affirmative delegation of jurisdiction . . . ." 154 F.3d at 946. Based on that statement from Means, the district court concluded that the power of an Indian tribe to conduct criminal prosecutions -at least where, as here, that power is exercised over non-member Indians -is a power derived from the federal government rather than an attribute of inherent tribal authority. Accordingly, the district court refused to apply the so called "dual sovereignty doctrine " and ruled that the Double Jeopardy Clause bars the government from prosecuting Enas in federal court.

II. DISCUSSION

Under the Double Jeopardy Clause, the government may not generally prosecute a defendant in a second proceeding when that defendant has been previously convicted, or acquitted, of the same crime. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969). The "dual sovereignty doctrine," however, allows two independent sovereign entities to prosecute an offender separately for a single offense. See Heath v. Alabama, 474 U.S. 82, 90 (1985). The rationale behind the dual sovereignty doctrine is this: if, in the course of a single crime, an individual breaks the laws of two distinct sovereigns, the person has offended both and has committed two distinct offenses for which each sovereign has an independent right to prosecute him. See United States v. Lanza, 260 U.S. 377, 382 (1922).

At the heart of the doctrine is the degree of separation between the two presumptive sovereigns. If the first sovereign's power emanates from a source independent of that which gives rise to the second sovereign's power, then the doctrine applies and the Double Jeopardy Clause is not violated when both sovereigns prosecute. If, on the other hand, the second sovereign's power is merely derivative of the first's, then one or the other may prosecute but not both.

The status of federal prosecutions vis-a-vis state and foreign prosecutions is well settled. See Moore v. Illinois, 55 U.S. 13, 14 (1852) (sequential prosecution for same offense by state and federal governments not barred by double jeopardy); United States v. Fontanez, 869 F.2d 180, 181-83 (2nd Cir. 1989) (federal prosecution not barred by prior foreign prosecution). As it relates to Indian tribes, however, application of the dual sovereignty doctrine has been less straightforward, in part because the prosecutorial power of the tribes has changed over time. While Indian tribes may prosecute their own members, see United States v. Wheeler, 435 U.S. 313, 322 (1978), they may not prosecute "non-Indians, " see Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). And in Duro v. Reina, 495 U.S. 676 (1990), the Supreme Court held that the tribes were not permitted to prosecute "non-member Indians" either.

The Means case, supra, reviewed the historical development of the applicable law. It noted that prior to Duro,

[I]t was not clear whether Indian tribal courts could exercise criminal jurisdiction over all Indians, or just over the members of their own tribes. On the other hand, it has been clear since the late 1970s both that Indian tribes cannot exercise criminal jurisdiction at all over "non-Indians" and that tribes can exercise criminal jurisdiction over their own members. In Duro, the Supreme Court explicitly resolved the remaining issue of "non-member Indians" . . . . .

. . . . .

[In so doing,] the Court faced the question of whether the tribes had also "retained" the inherent authority to exercise criminal jurisdiction over non member Indians, or whether that power . . . was "inconsistent with their status." The Court reasoned that its prior holdings made clear that non-member Indians were more like non-Indians in relation to tribes other than their own--that is, both were "external" to the tribe that wished to exert criminal jurisdiction over them. Therefore, it was clear that the "retained inherent authority" of the tribe to exer cise power over its internal affairs did not allow the tribe to exert criminal jurisdiction over any non members, whether Indian or not.

154 F.3d at 944, 945 (citations omitted).

Congress reacted to the Duro decision by passing the 1990 amendments to the ICRA. These amendments clearly recognized the tribes' inherent power of criminal jurisdiction over non-member Indians. The legislative record unmistakably characterizes the legislative action as a recognition and affirmance of the tribes' historical sovereign powers over non-member Indians. See United States v. Weaselhead, 36 F. Supp. 2d 908, 914-15 (D. Neb. 1997), aff'd by an equally divided court, 165 F.3d 1209 (8th Cir. 1999); see also Means, 154 F.3d at 943-44, 946-47.¹

In the present case, the government argues that the Tribe proceeded under its inherent authority when it prosecuted Enas. We agree with the government's assertion.

Although Duro temporarily restricted the reach of tribal power, Congress rejected that opinion through federal action. It is well established that Congress may deal with the special problems facing Indians using its authority under the Indian Commerce Clause. See Morton v. Mancari, 417 U.S. 535, 551-52 (1974). Congress may alter the scope of tribal power as set forth by the Supreme Court if the Court determines that scope as a matter of federal common law; it can do so because Congress has legislative authority over federal common law. See Milwaukee v. Illinois and Michigan, 451 U.S. 304, 313-14 (1981); Weaselhead, 156 F.3d at 825 (8th Cir. 1998) (M. Arnold, J., dissenting), reh'g granted and opinion vacated, 156 F.3d 818, on reh'g, 165 F.3d 1209 (8th Cir. 1999) (en banc) aff'g by an equally divided court 36 F. Supp. 2d 908 (D. Neb. 1997). Additionally, we note that Congress may recognize a power without being the source of that power. See Wheeler, 435 U.S. at 328 (1978).

In the panel opinion of Weaselhead, Judge Morris Sheppard Arnold of the United States Court of Appeals for the Eighth Circuit got it exactly right when he commented in his dissent on the power of Congress to recognize and affirm Indian sovereignty:

Chief Justice Marshall, in Cherokee Nation v. Georgia, 30 U.S. (5 Peters) 1, 16-19, 8 L.Ed. 25 (1831), suggested that the question of whether an Indian tribe was a state was to be determined by ref erence to the uniform custom of nations and, more important, by reference to the history of our coun try's dealings with various Indian tribes. Indian tribes, he wrote, "have been uniformly treated as a state, from the settlement of our country . . . . The acts of our government plainly recognise [sic ] the Cherokee nation as a state, and the courts are bound by those acts." Id. at 16. Chief...