Double Jeopardy and Nonmember Indians in Indian Country

Abstract

The ambivalence of the federal government to the sovereignty of native tribes is ordinarily a quiet fact of life in this country. Now, the federal circuits have disturbed that quiet by rendering opposing rulings on the question whether the Double Jeopardy Clause bars successive tribal/federal prosecution of nonmember Indians in Indian Country. The Ninth Circuit has held the Double Jeopardy Clause does not present a bar to successive tribal/federal prosecutions. In contrast, the Eighth Circuit has held that the Double Jeopardy Clause prohibits subsequent prosecution because the source of the tribe\u27s jurisdiction, if it has jurisdictional power, is the same as the source of the federal courts\u27. The circuit split has far reaching practical consequences, and the United States Supreme Court granted certiorari on the issue in United States v. Lara. This article gathers and analyzes various strands of law that contribute to the analysis of double jeopardy and nonmember Indians in Indian Country