Touro Law Review Volume 17 Number 4 Article 6 March 2016 Wheeler for Two, Do You Have a Reservation? The Supreme Court's Inconsistent Treatment of Tribal Sovereignty Fred Kantrow Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview Part of the Indian and Aboriginal Law Commons Recommended Citation Kantrow, Fred (2016) "Wheeler for Two, Do You Have a Reservation? The Supreme Court's Inconsistent Treatment of Tribal Sovereignty," Touro Law Review: Vol. 17 : No. 4 , Article 6. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol17/iss4/6 This Notes and Comments is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. For more information, please contact [email protected]. Kantrow: Wheeler for Two WHEELER FOR TWO, DO YOU HAVE A RESERVATION? THE SUPREME COURT'S INCONSISTENT TREATMENT OF TRIBAL SOVEREIGNTY Fred Kantrow' I. INTRODUCTION In 1978 the Supreme Court decided United States v. Wheeler,2 where the Court held that the Double Jeopardy Clause of the Fifth Amendment3 does not bar the prosecution of a Native American in a Federal District Court under the Federal Major Crimes Act,4 even though the defendant had previously been convicted in a tribal court of a lesser included offense arising out of the same incident. The Court held that tribes act as independent sovereigns rather than as an arm of the federal government and therefore the doctrine of dual sovereignty applied.5 The Court's decision in Wheeler is misplaced because the reasoning is flawed, and this paper will critique that decision. To reach its decision in Wheeler, the Court relied on the historical developments in cases that examined the status of the Indian nation. This note examines the historical development of decisions involving Native Americans and the relationship between decisions made prior to and subsequent to Wheeler in an attempt to understand how the Supreme Court came to its ultimate conclusion in Wheeler. In addition, this note examines the applicability of the Double Jeopardy Clause to the prosecution of Native Americans in federal courts subsequent to prosecution in tribal courts. As a starting point, I present a short overview of the doctrine of double jeopardy and how the Supreme Court has applied it. Next, a brief section outlines the Indian Civil Rights 1 J. D. Candidate Touro Law Center 2003. The author wishes to express gratitude to Professor Jeffrey Morris for his guidance in interpreting the law and his tireless efforts on the author's behalf. 2435 U.S. 313 (1978). 3 U.S. CONST. amend. V., provides that "[n]or shall any person be subject for the same offence to be twice put in jropardy of life or limb... " Pub. L. No. 89-707, 80 Stat. 1100 (codified as 18 U.S.C. § 1153 (2001)). 5 Wheeler, 435 U.S. at 332. Published by Digital Commons @ Touro Law Center, 2001 1 Touro Law Review, Vol. 17 [2001], No. 4, Art. 6 802 TOURO LAW REVIEW [Vol 17 Act 6 and the Major Crimes Act. 7 That section is followed with the so-called trilogy of Marshall Cases, Johnson v. McIntosh,8 Cherokee Nation v. Georgia9 and Worcester v. Georgia.'0 These three cases combined to form the basis of the Court's understanding of tribal sovereignty. These cases are followed by a number of decisions that reflect the lower courts' decisions, as well as the Supreme Court's holdings as to the status of Native Americans today and how that status is determinative of whether double jeopardy applies. Next, an examination of the decision in United States v. Wheeler is presented. Finally, a review of the decision in United States v. Weaselhead 1 is explored and used as a basis for criticisms of the Supreme Court's decisions. II. OVERVIEW OF DOUBLE JEOPARDY The concept of protection from double jeopardy was 12 recognized even before the Fifth Amendment was adopted. Evidence supports a conclusion that at common law double jeopardy acted as a bar to successive prosecutions by different sovereigns. 13 The Fifth Amendment's Double Jeopardy Clause provides, "nor shall any person be subject for the same offense to 6 Pub. L. No. 90-284, 82 Stat. 77, codified as 25 U.S.C. §§ 1301-1334 (2001). 7 18 U.S.C. § 1153. a 21 U.S. 543 (1823). 9 30 U.S. 1 (1832). 10 31 U.S. 515 (1832). " 156 F.3d 818 (8th Cir. 1998), cert. denied, 582 U.S. 829 (1999). 12 Erin M. Cranman, Comment, The Dual Sovereignty Exception to Double Jeopardy: A Champion of Justice or a Violation of a Fundamental Right?, 14 EMORY INT'L L. REv. 1641, 1644 (2000). The concept of double jeopardy first appeared in Massachusetts where the doctrine was applied to both criminal and civil cases. The doctrine was subsequently adopted by neighboring colonies. A basic protection, it was soon incorporated as a standard provision in the constitution and case law of the colonies. The drafters of the federal constitution recognized the importance placed on the doctrine and soon incorporated it into the federal constitution. 13 See, e.g., Ronald J. Allen & John P. Ratnaswamy, Heath v. Alabama: A Case Study of Doctrineand Rationality in the Supreme Court, 76 J. CRIM L. & CRIMINOLOGY 801, 810 (1985). https://digitalcommons.tourolaw.edu/lawreview/vol17/iss4/6 2 Kantrow: Wheeler for Two 2001 WHEELER FOR TWO 803 be twice put in jeopardy of life or limb .. .. It is clearly understood that the same government (i.e. federal government or state government) shall not prosecute the same crime twice, against the same defendant.1 5 However, the federal government may prosecute a criminal defendant Under a federal statute, despite the fact that the same defendant had previously16 been prosecuted for the same crime under a state statute. The seminal case on double jeopardy, Abbate v. United States, provided a vehicle for the Supreme Court to settle the issue of the ability of the federal government to prosecute a criminal defendant after the same defendant had been previously tried under state law. 17 Abbate sought review of the United States Court of Appeals for the Fifth Circuit's opinion which affirmed that the federal prosecution of the petitioner in connection with a conspiracy to destroy property did not subject 14 U.S. CONST. amend. V. '5 Abbate v. United States, 359 U.S. 187, 194 (1959) ("The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the Federal Government.... and the double jeopardy therein forbidden is a second prosecution under authority of the Federal Government after a first trial for the same offense under the same authority."). 16 Abbate, 359 U.S. at 192. 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 offence 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. 17 Id. The petitioners, with Shelby and McLeod, were previously indicted by the State of Illinois for violating an Illinois statute making it a crime to conspire to injure or destroy the property of another. The indictment describes the property as "communication facilities belonging to the Southern Bell Telephone & Telegraph Company" and "belonging to the American Telephone and Telegraph Company." The petitioners entered pleas of guilty to the indictment and were each sentenced to three months' imprisonment. Published by Digital Commons @ Touro Law Center, 2001 3 Touro Law Review, Vol. 17 [2001], No. 4, Art. 6 TOURO LAW REVIEW [Vol 17 the petitioner to double jeopardy due to his previous convictions 8 under Illinois state law for the same acts.' A brief overview of the facts in Abbate reveals that Abbate was successfully prosecuted under Illinois law for conspiring to destroy telephone communication facilities belonging to the Southern Bell Telephone and Telegraph Company. 19 Subsequently, a federal indictment was returned in the United States District Court for the Southern District of Mississippi. 20 This indictment did not refer to the facilities as belonging to the telephone companies, but charged the offense of violating 18 U.S.C. 371,21 telephone equipment located in the states of Mississippi, Tennessee and Louisiana. The equipment was considered to be essential and integral parts of a system of communication that was operated and controlled by the United States. McLeod confessed to his part in the conspiracy and testified at the federal trial to both the acts of his participation as well as Abbate's in the conspiracy. These same acts were the basis of the Illinois convictions.22 Justice Brennan delivered the opinion of the Court.23 Fearing that federal law enforcement would necessarily be hindered if not for the federal government's ability to prosecute offenses against federal statutes, Justice Brennan reasoned that ts Abbate, 359 U.S. at 188. 19 Id. at 187. 20 Id. at 188 (The conspiracy originated in Chicago, Illinois, hence the violation of the Illinois statute, the property that was destroyed was located in Mississippi). 21 18 U.S.C. § 371 (2001), which provides in pertinent part: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.