Court upholds dual tribal federal prosecutions
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JULY 2, 2001

American Indians who commit crimes in Indian Country can be prosecuted for the same offense by tribal and federal authorities without violating the double jeopardy clause of the US Constitution, the 9th Circuit Court of Appeals ruled on Friday.

Since tribes exercise authority over another Indian -- whether or not he or she is a tribal member -- based on inherent sovereignty, they are not acting as arms of the federal government, said the court. Therefore, prosecution by federal authorities can proceed without infringing on the rights of American Indians.

To prevent abuses of individual rights, the double jeopardy clause prohibits one from being prosecuted for the same crime. Dual prosecution, however, is allowed when undertaken by separate sovereigns.

In the case in question, Michael Enas, a member of the San Carlos Apache Tribe of Arizona, is the subject of tribal and federal prosecution. In 1994, Enas pled guilty to an assault charge for stabbing Joseph Kessey on the White Mountain Apache Reservation in Arizona.

The White Mountain Tribal Court then sentenced Enas to 180 days in jail and fined him $1,180. Enas subsequently escaped from tribal custody while on a work-release program.

At the same time, a federal grand jury in Arizona indicted Enas with an assault charge for the same stabbing. Enas challenged federal authority under grounds he had already been prosecuted by the White Mountain Tribe.

A federal court agreed with him in 1998 and held that the tribe had exercised authority not through its inherent power but through delegation by Congress. The distinction was significant because it meant the tribe and the federal government were the same sovereigns.

It also meant Enas would not be subject to tougher penalties under federal law. While tribes can prosecute Indians, the Indian Civil Rights Act (ICRA) of 1968 imposes limits on jail time and fines.

Last year, however, a three-judge panel of the 9th Circuit Court of Appeals, however, overturned the federal court decision. After a re-hearing before 11 judges, the court did the same on Friday.

"Because the Tribe and the federal government are properly considered separate sovereigns for double jeopardy purposes, the dual sovereignty exception permits successive tribal and federal prosecutions of Enas for the same conduct," wrote the court.

Although a Supreme Court appeal is possible, the court's ruling settles for now a controversy which drew the interest of Russell Means. Means' lawyer, John Trebon, participated in Enas' case because the actor and activist is challenging not federal prosecution, but tribal authority over all Indians.

Trebon argued that tribes can't prosecute Indians who are not members, based on the 1990 Duro v. Reina Supreme Court decision. If he is correct, Means, who is a member of the Oglala Lakota Tribe of South Dakota, might not face prosecution on misdemeanor assault charges by the Navajo Nation for a crime he allegedly committed on the Navajo Reservation.

Instead, the 9th Circuit said Congress has recognized tribal sovereignty over all Indians. In light of the Duro decision, Congress in 1990 passed legislation which recognized inherent tribal authority of both members and members of other tribes -- an action the court said was enough to show the power existed all along.

Get the Case:
US v. ENAS, No 99-10049 (9th Cir. June 29, 2001)

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