682
Successive Prosecutions
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The second paragraph of 18 U.S.C. § 1152 specifically provides
that
the section "does not extend" to an Indian "who has been punished by the
local
law of the Tribe." Section 1153, however, does not contain such a
limitation.
The Supreme Court has held that the Double Jeopardy Clause of the Fifth
Amendment
to the Constitution does not bar prosecutions of violations of § 1153
in
federal court following prosecutions in tribal court for violations of
tribal law
involving the same conduct. The Court reasoned that the courts are arms of
separate sovereigns and prosecution is not "for the same offense."
See
United States v. Wheeler, 435 U.S. 313 (1978). Although departmental
approval is not required before a subsequent federal prosecution is
undertaken,
one should not be undertaken unless there is a compelling federal interest.
Cf. USAM 9-2.031, I. A, B, and C(1)
(Petite Policy). In determining whether federal interests have been
satisfied,
consideration should be given to the limitations on tribal sentencing power
measured against the seriousness of the offense. See also United
States v. Lester, 992 F.2d 174 (8th Cir. 1993)("Petite policy" creates
no
rights enforceable by defendant). The Court in Wheeler left open the
question whether the "dual sovereignty" ruling would apply to "Courts of
Indian
Offenses," also known as "CFR Courts." 435 U.S. at 327 n. 26. See
this
Manual at 687.
[cited in USAM 9-20.100] | |