682. Successive Prosecutions

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. JM 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 JM 9-20.100]