DANIEL DONOVAN

Senior Assistant Federal Defender

Federal Defenders of Montana

P. O. Box 3547

Great Falls, Montana 59403

(406) 727-5328

Counsel for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

xxxxxxxxxxxxxxx, the above-named Defendant, by and through his counsel of record, DANIEL DONOVAN and the FEDERAL DEFENDERS OF MONTANA, hereby moves this Court to dismiss the Indictment filed against him on grounds of double jeopardy. Defendant xxxxxxxxx pleaded guilty to, and was sentenced for, essentially the same offense(s), or lesser offense(s) thereto, in the Fort Belknap Tribal Court. See Documents from the Fort Belknap Tribal Court from the case of Fort Belknap Indian Community v. Richard Long Fox, attached hereto as Exhibits "A", "B", "C", "D", "E", "F", "G" and "H".

The Double Jeopardy Clause of the Fifth Amendment states, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb..." The purpose of this Bill of Rights guarantee that no individual be twice put in jeopardy was described vividly by the Supreme Court in Green v. United States, 355 U.S. 184, 187-188 (1957):

The underlying idea ... is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Although the Double Jeopardy Clause says what it says, the Supreme Court has repeatedly held that criminal prosecutions brought by different sovereigns are not the "same offence" and thus do not constitute double jeopardy. This principle is referred to as the "dual sovereign doctrine." See, e.g., United States v. Lanza, 260 U.S. 377, 382 (1922). More recently, in Abbate v. United States, 359 U.S. 187, 188-189 (1959), the Court held that it was a well-established principle that "a federal prosecution is not barred by a prior state prosecution of the same person for the same acts."

The dual sovereign doctrine has been extended to Indian people who are charged with the same offense in a tribal court and in a United States District Court. In United States v. Wheeler, 435 U.S. 313, 322 (1978), the Supreme Court reasoned that if the power to punish tribe members emanated from the tribe's inherent sovereignty, double jeopardy could not be implicated by a subsequent federal prosecution for the same conduct.

The dual sovereign doctrine has been widely criticized by judges and legal commentators alike. The original decisions which constitute the foundational rationale for the doctrine have been reversed and modified over the years. In his dissent in United States v. Barkus, 359 U.S. 121, 155 (1959), Justice Black argued that successive prosecutions for the same offense are so contrary to due process that the practice has been rejected throughout Western Civilization:

Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times. Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers.

According to Justice Black, successive prosecutions for the same offense were prohibited even by the Church canons, which contained the maxim, "[not] even God judges twice for the same act." Id.

In Benton v. Maryland, 395 U.S. 784 (1969), the Supreme Court held that the Double Jeopardy Clause is applicable for the states through the Fourteenth Amendment. In two other cases, Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52,77-78 (1964) and Elkins v. United States, 364 U.S. 206, 223-224 (1960), the Court abolished the dual sovereign doctrine in the areas of self-incrimination (Murphy) and unreasonable search and seizure (Elkins) because these respective provisions were incorporated into the Fourteenth Amendment to apply to the states. If the Court rejects the "separate sovereignty theory" for self-incrimination and unreasonable search and seizures, why does it maintain this fiction for successive prosecutions?

For this and other reasons, legal commentators are almost unanimously critical of the dual sovereign doctrine. ⁽¹⁾ In short, although the text of the Fifth Amendment does not limit our double jeopardy protections to prosecutions brought by the same sovereign, the Supreme Court has, in effect, rewritten the Double Jeopardy Clause to read that no person shall be put "twice in jeopardy by the same sovereign." As one commentator asked over sixty years ago, "[s]hall we fritter away our liberties upon a metaphysical subtlety, two sovereignties?" Grant supra note 1, at 1331. The answer then, and the answer today, is NO!

In United States v. Weaselhead, ___ F.3d ___, 1998 WL 569028 (8th Cir. September 9, 1998), the defendant, a Blackfoot Indian, pleaded no contest to one count of first degree sexual assault in the Winnebago Tribal Court in Nebraska. The same day that Weaselhead entered his plea in tribal court, he was indicted by a federal grant jury on a charge of engaging in a sexual act with an Indian female juvenile in violation of 18 U.S.C. §§ 2243 and 1153. The Eight Circuit held that the dual sovereignty limitation was inapplicable and that the Double Jeopardy Clause bars the federal prosecution of Weaselhead for the same conduct that provided the factual basis for his earlier conviction in tribal court because the power of the Winnebago tribe to punish non-member Indians emanates solely from congressionally delegated authority and, thus, the tribal court and the federal court, in Weaselhead's case, do not draw their authority to punish from distinct sources of power.

Defendant xxxx, as a member of the Assiniboine Tribe and, thus, presumably subject to jurisdiction of the Fort Belknap Tribal Court, stands, unlike Weaselhead, as a "member" Indian before the Fort Belknap Tribal Court. Thus, the holding of Weaselhead cannot be applied directly to Defendant LONG FOX. However, the reasoning of Weaselhead can. Unlike a state of the United States, the authority of an Indian tribe to prosecute its members emanates from the United States Government, not from the tribe itself. Clearly, Congress grants jurisdiction to Indian tribes. See, e.g., 25 U.S.C. §§ 1301 to 1303.

More importantly, unlike the states, Indian nations did not voluntarily join, or submit themselves to, the United States of America. Indian people, Indian tribes and Indian nations were conquered by the United States of America. While individual Indians may have been granted the status and rights as American citizens, tribal nations are not of equal status with the states. The United States of America and its government, as benevolent as we may want it to be, still stands as conqueror over the conquered. Clearly, an Indian tribe, as a conquered nation, has only as much power as the United States, the conquering nation, gives it. The power to prosecute Defendant LONG FOX in tribal court comes from the same source as the power to prosecute him in federal courts. As stated in Wheeler, the sovereignty of Indian tribes "exists only at the sufferance of Congress and is subject to complete defeasance." 435 U.S. at 323. Thus, the dual sovereign principle is inapplicable and the Double Jeopardy Clause protects Defendant LONG FOX here. Accordingly, the Indictment must be dismissed.

DATED this 18th day of September, 1998.

RICHARD JAMES LONG FOX

By:____________________________

DANIEL DONOVAN

Senior Assistant Federal Defender

Federal Defenders of Montana

P. O. Box 3547 Great Falls, MT 59403

Counsel for Defendant

CERTIFICATE OF SERVICE

I hereby certify that on September 18, 1998 a copy of the foregoing was served, either by mail or personal delivery, on:

CHAMBERS OF HON. DONALD W. MOLLOY

U.S. District Court Judge

Attn.: Patrick Duffy

201 East Broadway

Missoula, MT 59802

LORI A. HARPER

Assistant U.S. Attorney

P.O. Box 3447

Great Falls, MT 59403

Counsel for the United States

Star Route

Lodgepole, MT 59527

Defendant

_________________________________________

FEDERAL DEFENDERS OF MONTANA

1. The following is a sample of articles that are highly critical of the doctrine: Paul G. Cassell, the Rodney King trials and the Double Jeopardy Clause: Some Observations on Original Meaning and the ACLU's Schizophrenic Views of the Dual Sovereign Doctrine, 41 UCLA L. REV. 693 (1994); Daniel A. Braun, Praying to False Sovereigns: The Rule Permitting Successive Prosecutions in the Age of Cooperative Federalism, 20 AM.J.CRIM. L. 1 (1992); Susan H. Herman, Double Jeopardy All Over Again: Dual Sovereignty, Rodney King, and the ACLU, 41 UCLA L. REV. 609 (1994); J.A.C. Grant, Successive Prosecutions by State and Nation: Common Law and British Empire Comparisons, 4 UCLA L. REV. 1 (1956); J.A.C. Grant, The Lanza Rule of Successive Prosecutions, 32 COLUM. L. REV. 1309 (1932); Walter L. Fisher, Double Jeopardy, Two Sovereignties and the Intruding Constitution, 28 U. CHI. L. REV. 591 (1961); Evan Tsen Lee, The Dual Sovereignty Exception to Double Jeopardy: In the Wake of Garcia v. San Antonio Metro. Transit Auth., 22 NEW ENG. L. REV. 31 (1987); Lawrence Newman, Double Jeopardy and the Problem of Successive Prosecutions: A Suggested Solution, 34 S.CAL. REV. 252 (1961); Akhil Reed Amar and Jonathan L. Marcus, Double Jeopardy After Rodney King, 95 COLUM. L. REV. 1, 4 (1995).