Respondent, a member of the Navajo Tribe, pleaded guilty in
Tribal Court to a charge of contributing to the delinquency of a
minor, and was sentenced. Subsequently, he was indicted by a
federal grand jury for statutory rape arising out of the same
incident. He moved to dismiss the indictment on the ground that,
since the tribal offense of contributing to the delinquency of a
minor was a lesser included offense of statutory rape, the Tribal
Court proceeding barred the subsequent federal prosecution. The
District Court granted the motion, and the Court of Appeals
affirmed, holding that, since tribal courts and federal district
courts are not "arms of separate sovereigns," the Double Jeopardy
Clause of the Fifth Amendment barred respondent's federal
trial.
Held: The Double Jeopardy Clause does not bar the
federal prosecution. Pp.
435 U. S.
316-332.
(a) The controlling question is the source of an Indian tribe's
power to punish tribal offenders,
i.e., whether it is a
part of inherent tribal sovereignty or an aspect of the sovereignty
of the Federal Government that has been delegated to the tribes by
Congress. Pp.
435 U. S.
316-322.
(b) Indian tribes still possess those aspects of sovereignty not
withdrawn by treaty or statute, or by implication as a necessary
result of their dependent status. Pp.
435 U. S.
322-323.
(c) Here, it is evident from the treaties between the Navajo
Tribe and the United States and from the various statutes
establishing federal criminal jurisdiction over crimes involving
Indians, that the Navajo Tribe has never given up its sovereign
power to punish tribal offenders, nor has that power implicitly
been lost by virtue of the Indians' dependent status; thus, tribal
exercise of that power is presently the continued exercise of
retained tribal sovereignty. Pp.
435 U. S.
323-326.
(d) Moreover, such power is not attributable to any delegation
of federal authority. Pp.
435 U. S.
326-328.
(e) When an Indian tribe criminally punishes a tribe member for
violating tribal law, the tribe acts as an independent sovereign,
and not as an arm of the Federal Government,
Talton v.
Mayes, 163 U. S. 376, and
since tribal and federal prosecutions are brought by separate
sovereigns,
Page 435 U. S. 314
they are not "for the same offence," and the Double Jeopardy
Clause thus does not bar one when the other has occurred. Pp.
435 U. S.
328-330.
(f) To limit the "dual sovereignty" concept to successive state
and federal prosecutions, as respondent urges, would result, in a
case such as this, in the "undesirable consequences" of having a
tribal prosecution for a relatively minor offense bar a federal
prosecution for a much graver one, thus depriving the Federal
Government of the right to enforce its own laws; while Congress
could solve this problem by depriving Indian tribes of criminal
jurisdiction altogether, this abridgment of the tribes' sovereign
powers might be equally undesirable.
See Abbate v. United
States, 359 U. S. 187. Pp.
435 U. S.
330-332.
545 F.2d 1255, reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which all
other Members joined except BRENNAN, J., who took no part in the
consideration or decision of the case.
MR. JUSTICE STEWART delivered the opinion of the Court.
The question presented in this case is whether the Double
Jeopardy Clause of the Fifth Amendment bars the prosecution of an
Indian in a federal district court under the Major Crimes Act, 18
U.S.C. § 1153, when he has previously been convicted in a tribal
court of a lesser included offense arising out of the same
incident.
I
On October 16, 1974, the respondent, a member of the Navajo
Tribe, was arrested by a tribal police officer at the Bureau of
Indian Affairs High School in Many Farms, Ariz. on the Navajo
Indian Reservation. [
Footnote
1] He was taken to the
Page 435 U. S. 315
tribal jail in Chinle, Aris., and charged with disorderly
conduct, in violation of Title 17, § 351, of the Navajo Tribal Code
(1969). On October 18, two days after his arrest, the respondent
pleaded guilty to disorderly conduct and a further charge of
contributing to the delinquency of a minor, in violation of Title
17, § 321, of the Navajo Tribal Code (1969). He was sentenced to 15
days in jail or a fine of $30 on the first charge and to 60 days in
jail (to be served concurrently with the other jail term) or a fine
of $120 on the second. [
Footnote
2]
Over a year later, on November 19, 1975, an indictment charging
the respondent with statutory rape was returned by a grand jury in
the United States District Court for the District of Arizona.
[
Footnote 3] The respondent
moved to dismiss this
Page 435 U. S. 316
indictment, claiming that, since the tribal offense of
contributing to the delinquency of a minor was a lesser included
offense of statutory rape, [
Footnote 4] the proceedings that had taken place in the
Tribal Court barred a subsequent federal prosecution .
See
Brown v. Ohio, 432 U. S. 161. The
District Court, rejecting the prosecutor's argument that "there is
not an identity of sovereignties between the Navajo Tribal Courts
and the courts of the United States," dismissed the indictment.
[
Footnote 5] The Court of
Appeals for the Ninth Circuit affirmed the judgment of dismissal,
concluding that, since "Indian trial courts and United States
district courts are not arms of separate sovereigns," the Double
Jeopardy Clause barred the respondent's trial. 545 F.2d 1255, 1258.
We granted certiorari to resolve an inter-circuit conflict. 434
U.S. 816. [
Footnote 6]
II
In
Bartkus v. Illinois, 359 U.
S. 121, and
Abbate v. United States,
359 U. S. 187,
this Court reaffirmed the well established
Page 435 U. S. 317
principle that a federal prosecution does not bar a subsequent
state prosecution of the same person for the same acts, and a state
prosecution does not bar a federal one. [
Footnote 7] The basis for this doctrine is that
prosecutions under the laws of separate sovereigns do not, in the
language of the Fifth Amendment, "subject [the defendant] for the
same offence to be twice put in jeopardy":
"An offence, in its legal signification, means the transgression
of a law. . . . 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 offense 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."
Moore v.
Illinois, 14 How. 13,
55 U. S.
19-20.
It was noted in
Abbate, supra at
359 U. S. 195,
that the "undesirable consequences" that would result from the
imposition of a double jeopardy bar in such circumstances further
support the
Page 435 U. S. 318
"dual sovereignty" concept. Prosecution by one sovereign for a
relatively minor offense might bar prosecution by the other for a
much graver one, thus effectively depriving the latter of the right
to enforce its own laws. [
Footnote
8] While, the Court said, conflict might be eliminated by
making federal jurisdiction exclusive where it exists, such a
"marked change in the distribution of powers to administer criminal
justice" would not be desirable.
Ibid.
The "dual sovereignty" concept does not apply, however, in every
instance where successive cases are brought by nominally different
prosecuting entities.
Grafton v. United States,
206 U. S. 333,
held that a soldier who had been acquitted of murder by a federal
court-martial could not be retried for the same offense by a
territorial court in the Philippines. [
Footnote 9] And
Puerto Rico v. Shell Co.,
302 U. S. 253,
302 U. S.
264-266, reiterated that successive prosecutions by
federal and territorial courts are impermissible, because such
courts are "creations emanating from the same sovereignty."
Similarly, in
Waller v. Florida, 397 U.
S. 387, we held that a city and the State of which
it
Page 435 U. S. 319
is a political subdivision could not bring successive
prosecutions for unlawful conduct growing out of the same episode,
despite the fact that state law treated the two as separate
sovereignties.
The respondent contends, and the Court of Appeals held, that the
"dual sovereignty" concept should not apply to successive
prosecutions by an Indian tribe and the United States, because the
Indian tribes are not themselves sovereigns, but derive their power
to punish crimes from the Federal Government. This argument relies
on the undisputed fact that Congress has plenary authority to
legislate for the Indian tribes in all matters, including their
form of government.
Winton v. Amos, 255 U.
S. 373,
255 U. S.
391-392;
In re Heff, 197 U.
S. 488,
197 U. S.
498-499;
Lone Wolf v. Hitchcock, 187 U.
S. 553;
Talton v. Mayes, 163 U.
S. 376,
163 U. S. 384.
Because of this all-encompassing federal power, the respondent
argues that the tribes are merely "arms of the federal government"
[
Footnote 10] which, in the
words of his brief, "owe their existence and vitality solely to the
political department of the federal government."
We think that the respondent and the Court of Appeals, in
relying on federal control over Indian tribes, have misconceived
the distinction between those cases in which the "dual sovereignty"
concept is applicable and those in which it is not. It is true that
territories are subject to the ultimate control of Congress,
[
Footnote 11] and cities to
the control of the State which created them. [
Footnote 12] But that fact was not relied upon
as the basis for the decisions in
Grafton, Shell Co.,
[
Footnote 13] and
Waller.
Page 435 U. S. 320
What differentiated those cases from
Bartkus and
Abbate was not the extent of control exercised by one
prosecuting authority over the other, but rather the ultimate
source of the power under which the respective prosecutions were
undertaken.
Bartkus and
Abbate rest on the basic structure
of our federal system, in which States and the National Government
are separate political communities. State and Federal Governments
"[derive] power from different sources," each from the organic law
that established it.
United States v. Lanza, 260 U.
S. 377,
260 U. S. 382.
Each has the power, inherent in any sovereign, independently to
determine what shall be an offense against its authority and to
punish such offenses, and, in doing so, each "is exercising its own
sovereignty, not that of the other."
Ibid. And while the
States, as well as the Federal Government, are subject to the
overriding requirements of the Federal Constitution, and the
Supremacy Clause gives Congress within its sphere the power to
enact laws superseding conflicting laws of the States, this degree
of federal control over the exercise of state governmental power
does not detract from the fact that it is a State's own sovereignty
which is the origin of its power. [
Footnote 14]
By contrast, cities are not sovereign entities.
"Rather, they have been traditionally regarded as subordinate
governmental instrumentalities created by the State to assist in
the carrying out of state governmental functions."
Reynolds v. Sims, 377 U. S. 533,
377 U.S. 575. [
Footnote 15] A city is nothing more
than "an agency of
Page 435 U. S. 321
the State."
Williams v. Eggleston, 170 U.
S. 304,
170 U. S. 310.
Any power it has to define and punish crimes exists only because
such power has been granted by the State; the power "derive[s] . .
. from the source of [its] creation."
Mount Pleasant v.
Beckwith, 100 U. S. 514,
100 U. S. 524.
As we said in
Waller v. Florida, supra at
397 U. S. 393,
"the judicial power to try petitioner . . . in municipal court
springs from the same organic law that created the state court of
general jurisdiction."
Similarly, a territorial government is entirely the creation of
Congress, "and its judicial tribunals exert all their powers by
authority of the United States."
Grafton v. United States,
supra at
206 U. S. 354;
see Cincinnati Soap Co. v. United States, 301 U.
S. 308,
301 U. S. 317;
United States v. Kagama, 118 U. S. 375,
118 U. S. 380;
American Ins. Co. v.
Canter, 1 Pet. 511,
26 U. S. 542.
[
Footnote 16] When a
territorial government enacts and enforces criminal laws to govern
its inhabitants, it is not acting as an independent political
community like a State, but as "an agency of the federal
government."
Domenech v. National City Bank, 294 U.
S. 199,
294 U. S.
204-205.
Thus, in a federal Territory and the Nation, as in a city and a
State, "[t]here is but one system of government, or of laws
operating within [its] limits."
Benner v.
Porter, 9 How. 235,
50 U. S. 242.
City and State, or Territory and Nation, are not two separate
sovereigns to whom the citizen owes separate allegiance in any
meaningful sense, but one alone. [
Footnote 17] And the "dual sovereignty" concept of
Bartkus and
Abbate does not permit a single
sovereign to impose multiple punishment for
Page 435 U. S. 322
a single offense merely by the expedient of establishing
multiple political subdivisions with the power to punish
crimes.
III
It is undisputed that Indian tribes have power to enforce their
criminal laws against tribe members. Although physically within the
territory of the United States and subject to ultimate federal
control, they nonetheless remain "a separate people, with the power
of regulating their internal and social relations."
United
States v. Kagama, supra at
118 U. S.
381-382;
Cherokee Nation v.
Georgia, 5 Pet. 1,
30 U. S. 16.
[
Footnote 18] Their right of
internal self-government includes the right to prescribe laws
applicable to tribe members and to enforce those laws by criminal
sanctions.
United States v. Antelope, 430 U.
S. 641,
430 U. S. 643
n. 2;
Talton v. Mayes, 163 U.S. at
163 U. S. 380;
Ex parte Crow Dog, 109 U. S. 556,
109 U. S.
571-572;
see 18 U.S.C. § 1152 (1976 ed.),
infra, n 21. As
discussed above in
435 U. S. the
controlling question in this case is the source of this power to
punish tribal offenders: is it a part of inherent tribal
sovereignty, or an aspect of the sovereignty of the Federal
Government which has been delegated to the tribes by Congress?
A
The powers of Indian tribes are, in general, "
inherent
powers of a limited sovereignty which has never been
extinguished." F. Cohen, Handbook of Federal Indian Law 122
(1945) (emphasis in original). Before the coming of the Europeans,
the tribes were self-governing sovereign political
Page 435 U. S. 323
communities.
See McClanahan v. Arizona State Tax
Comm'n, 411 U. S. 164,
411 U. S. 172.
Like all sovereign bodies, they then had the inherent power to
prescribe laws for their members and to punish infractions of those
laws.
Indian tribes are, of course, no longer "possessed of the full
attributes of sovereignty."
United States v. Kagama, supra
at
118 U. S. 381.
Their incorporation within the territory of the United States, and
their acceptance of its protection, necessarily divested them of
some aspects of the sovereignty which they had previously
exercised. [
Footnote 19] By
specific treaty provision, they yielded up other sovereign powers;
by statute, in the exercise of its plenary control, Congress has
removed still others.
But our cases recognize that the Indian tribes have not given up
their full sovereignty. We have recently said:
"Indian tribes are unique aggregations possessing attributes of
sovereignty over both their members and their territory. . . .
[They] are a good deal more than 'private, voluntary
organizations.'"
United States v. Mazurie, 419 U.
S. 544,
419 U. S. 557;
see also Turner v. United States, 248 U.
S. 354,
248 U. S. 354-355;
Cherokee Nation v. Georgia, supra at
30 U. S. 117.
The sovereignty that the Indian tribes retain is of a unique and
limited character. It exists only at the sufferance of Congress,
and is subject to complete defeasance. But until Congress acts, the
tribes retain their existing sovereign powers. In sum, Indian
tribes still possess those aspects of sovereignty not withdrawn by
treaty or statute, or by implication as a necessary result of their
dependent status.
See Oliphant v. Suquamish Indian Tribe,
ante, p.
435 U. S. 191.
B
It is evident that the sovereign power to punish tribal
offenders has never been given up by the Navajo Tribe, and that
tribal exercise of that power today is therefore the continued
Page 435 U. S. 324
exercise of retained tribal sovereignty. Although both of the
treaties executed by the Tribe with the United States [
Footnote 20] provided for punishment
by the United States of Navajos who commit crimes against
non-Indians, nothing in either of them deprived the Tribe of its
own jurisdiction to charge, try, and punish members of the Tribe
for violations of tribal law. On the contrary, we have said
that
"[i]mplicit in these treaty terms . . . was the understanding
that the internal affairs of the Indians remained exclusively
within the jurisdiction of whatever tribal government existed."
Williams v. Lee, 358 U. S. 217,
358 U. S.
221-222;
see also Warren Trading Post v. Tax
Comm'n, 380 U. S. 685.
Similarly, statutes establishing federal criminal jurisdiction
over crimes involving Indians have recognized an Indian tribe's
jurisdiction over its members. The first Indian Trade and
Intercourse Act, Act of July 22, 1790, § 5, 1 Stat. 138, provided
only that the Federal Government would punish offenses committed
against Indians by "any citizen or inhabitant of the United
States"; it did not mention crimes committed by Indians. In 1817,
federal criminal jurisdiction was extended to crimes committed
within the Indian country by "any Indian, or other person or
persons," but "any offence committed by one Indian against another,
within any Indian boundary" was excluded. Act of Mar. 3, 1817, ch.
92, 3 Stat. 383. In the Indian Trade and Intercourse Act of 1834, §
25, 4 Stat. 733, Congress enacted the direct progenitor of the
General Crimes Act, now 18 U.S.C. § 1152 (1976 ed.), which makes
federal enclave criminal law generally applicable to crimes in
"Indian country." [
Footnote
21] In this statute, Congress carried
Page 435 U. S. 325
forward the intra-Indian offense exception because "the tribes
have exclusive jurisdiction" of such offenses, and "we can[not]
with any justice or propriety extend our laws to" them. H.R.Rep.
No. 474, 23d Cong., 1st Sess., 13 (1834). And in 1854, Congress
expressly recognized the jurisdiction of tribal courts when it
added another exception to the General Crimes Act, providing that
federal courts would not try an Indian "who has been punished by
the local law of the tribe." Act of Mar. 27, 1854, § 3, 10 Stat.
270. [
Footnote 22] Thus, far
from depriving Indian tribes of their sovereign power to punish
offenses against tribal law by members of a tribe, Congress has
repeatedly recognized that power and declined to disturb it.
[
Footnote 23]
Page 435 U. S. 326
Moreover; the sovereign power of a tribe to prosecute its
members for tribal offenses clearly does not fall within that part
of sovereignty which the Indians implicitly lost by virtue of their
dependent status. The areas in which such implicit divestiture of
sovereignty has been held to have occurred are those involving the
relations between an Indian tribe and nonmembers of the tribe.
Thus, Indian tribes can no longer freely alienate to non-Indians
the land they occupy.
Oneida Indian Nation v. County of
Oneida, 414 U. S. 661,
414 U. S.
667-668;
Johnson v.
M'Intosh, 8 Wheat. 543,
21 U. S. 574.
They cannot enter into direct commercial or governmental relations
with foreign nations.
Worcester v.
Georgia, 6 Pet. 515,
31 U. S. 559;
Cherokee Nation v. Georgia, 5 Pet. at
30 U. S. 17-18;
Fletcher v.
Peck, 6 Cranch 87,
10 U. S. 147
(Johnson, J., concurring). And, as we have recently held, they
cannot try nonmembers in tribal courts.
Oliphant v. Suquamish
Indian Tribe, ante, p.
435 U. S. 191.
These limitations rest on the fact that the dependent status of
Indian tribes within our territorial jurisdiction is necessarily
inconsistent with their freedom independently to determine their
external relations. But the powers of self-government, including
the power to prescribe and enforce internal criminal laws, are of a
different type. They involve only the relations among members of a
tribe. Thus, they are not such powers as would necessarily be lost
by virtue of a tribe's dependent status.
"[T]he settled doctrine of the law of nations is that a weaker
power does not surrender its independence -- its right to
self-government, by associating with a stronger and taking its
protection."
Worcester v. Georgia, supra, at
31 U. S.
560-561.
C
That the Navajo Tribe's power to punish offenses against tribal
law committed by its members is an aspect of its
Page 435 U. S. 327
retained sovereignty is further supported by the absence of any
federal grant of such power. If Navajo self-government were merely
the exercise of delegated federal sovereignty, such a delegation
should logically appear somewhere. But no provision in the relevant
treaties or statutes confers the right of self-government in
general, or the power to punish crimes in particular, upon the
Tribe. [
Footnote 24]
It is true that, in the exercise of the powers of
self-government, as in all other matters, the Navajo Tribe, like
all Indian tribes, remains subject to ultimate federal control.
Thus, before the Navajo Tribal Council created the present Tribal
Code and tribal courts, [
Footnote 25] the Bureau of Indian Affairs established a
Code of Indian Tribal Offenses and a Court of Indian Offenses for
the reservation.
See 25 CFR Part 11 (1977);
cf.
25 U.S.C. § 1311. [
Footnote
26] Pursuant to federal regulations, the present Tribal Code
was approved by the Secretary of the Interior before becoming
effective.
See 25 CFR § 11.1(e) (1977). Moreover, the
Indian Reorganization Act of 1934, § 16, 48 Stat. 987, 25 U.S.C. §
476, and the Act of Apr.19, 1950, § 6, 64 Stat. 46, 25 U.S.C. §
636, each authorized the Tribe to adopt a constitution for
self-government. And the Indian Civil Rights Act of 1968, 82 Stat.
77, 25 U.S.C. § 1302,
Page 435 U. S. 328
made most of the provisions of the Bill of Rights applicable to
the Indian tribes and limited the punishment tribal courts could
impose to imprisonment for six months, or a fine of $500, or
both.
But none of these laws created the Indians' power to govern
themselves and their right to punish crimes committed by tribal
offenders. Indeed, the Wheeler-Howard Act and the Navajo-Hopi
Rehabilitation Act both recognized that Indian tribes already had
such power under "existing law."
See Powers of Indian
Tribes, 55 I.D. 14 (1934). That Congress has, in certain ways,
regulated the manner and extent of the tribal power of
self-government does not mean that Congress is the source of that
power.
In sum, the power to punish offenses against tribal law
committed by Tribe members, which was part of the Navajos' primeval
sovereignty, has never been taken away from them, either explicitly
or implicitly, and is attributable in no way to any delegation to
them of federal authority. [
Footnote 27] It follows that, when the Navajo Tribe
exercises this power, it does so as part of its retained
sovereignty, and not as an arm of the Federal Government. [
Footnote 28]
D
The conclusion that an Indian tribe's power to punish tribal
offenders is part of its own retained sovereignty is clearly
Page 435 U. S. 329
reflected in a case decided by this Court more than 80 years
ago,
Talton v. Mayes, 163 U. S. 376.
There, a Cherokee Indian charged with murdering another Cherokee in
the Indian Territory claimed that his indictment by the Tribe was
defective under the Grand Jury Clause of the Fifth Amendment. In
holding that the Fifth Amendment did not apply to tribal
prosecutions, the Court stated:
"The case . . . depends upon whether the powers of local
government exercised by the Cherokee nation are Federal powers
created by and springing from the Constitution of the United
States, and hence controlled by the Fifth Amendment to that
Constitution, or whether they are local powers not created by the
Constitution, although subject to its general provisions and the
paramount authority of Congress. The repeated adjudications of this
Court have long since answered the former question in the negative.
. . ."
"
* * * *"
"True it is that, in many adjudications of this court, the fact
has been fully recognized that, although possessed of these
attributes of local self-government, when exercising their tribal
functions, all such rights are subject to the supreme legislative
authority of the United States. . . . But the existence of the
right in Congress to regulate the manner in which the local powers
of the Cherokee nation shall be exercised does not render such
local powers Federal powers arising from and created by the
Constitution of the United States."
Id. at
163 U. S.
382-384.
The relevance of
Talton v. Mayes to the present case is
clear. The Court there held that, when an Indian tribe criminally
punishes a tribe member for violating tribal law, the tribe acts as
an independent sovereign, and not as an arm of the Federal
Government. [
Footnote 29]
Since tribal and federal prosecutions are
Page 435 U. S. 330
brought by separate sovereigns, they are not "for the same
offence," and the Double Jeopardy Clause thus does not bar one when
the other has occurred.
IV
The respondent contends that, despite the fact that successive
tribal and federal prosecutions are not "for the same offence," the
"dual sovereignty" concept should be limited to successive state
and federal prosecutions. But we cannot accept so restrictive a
view of that concept, a view which, as has been noted, would
require disregard of the very words of the Double Jeopardy Clause.
Moreover, the same sort of "undesirable consequences" identified in
Abbate could occur if successive tribal and federal
prosecutions were barred despite the fact that tribal and federal
courts are arms of separate sovereigns. Tribal courts can impose no
punishment in excess of six months' imprisonment or a $500 fine. 25
U.S.C. § 1302(7). On the other hand, federal jurisdiction over
crimes committed by Indians includes many major offenses. 18 U.S.C.
§ 1153 (1976 ed.). [
Footnote
30] Thus, when both a federal prosecution for a major crime and
a tribal prosecution for a lesser included offense are possible,
the defendant will often face the potential of a mild tribal
punishment and a federal punishment of substantial severity.
Indeed, the respondent in the present case faced the possibility of
a federal sentence of 15 years in prison, but received a tribal
sentence of no more than 75 days and a small fine. In such a case,
the prospect
Page 435 U. S. 331
of avoiding more severe federal punishment would surely motivate
a member of a tribe charged with the commission of an offense to
seek to stand trial first in a tribal court. Were the tribal
prosecution held to bar the federal one, important federal
interests in the prosecution of major offenses on Indian
reservations [
Footnote 31]
would be frustrated. [
Footnote
32]
This problem would, of course, be solved if Congress, in the
exercise of its plenary power over the tribes, chose to deprive
them of criminal jurisdiction altogether. But such a fundamental
abridgment of the powers of Indian tribes might be thought as
undesirable as the federal preemption of state criminal
jurisdiction that would have avoided conflict in
Bartkus
and
Abbate. The Indian tribes are "distinct political
communities" with their own mores and laws,
Worcester v.
Georgia, 6 Pet. at
31 U. S. 557;
The Kansas
Indians, 5 Wall. 737,
72 U. S. 756,
[
Footnote 33] which can be
enforced by formal criminal proceedings in tribal courts as well as
by less formal means. They have a significant interest in
maintaining orderly relations among their members and in preserving
tribal customs and traditions, apart from the federal interest in
law and order on the reservation. Tribal laws and procedures are
often influenced by tribal
Page 435 U. S. 332
custom and can differ greatly from our own.
See Ex parte
Crow Dog, 109 U.S. at
109 U. S. 571. [
Footnote 34]
Thus, tribal courts are important mechanisms for protecting
significant tribal interests. [
Footnote 35] Federal preemption of a tribe's jurisdiction
to punish its members for infractions of tribal law would detract
substantially from tribal self-government, just as federal
preemption of state criminal jurisdiction would trench upon
important state interests. Thus, just as in
Bartkus and
Abbate, there are persuasive reasons to reject the
respondent's argument that we should arbitrarily ignore the settled
"dual sovereignty" concept as it applies to successive tribal and
federal prosecutions.
Accordingly, the judgment of the Court of Appeals is reversed,
and the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
MR. JUSTICE BRENNAN took no part in the consideration or
decision of this case.
[
Footnote 1]
The record does not make clear the details of the incident that
led to the respondent's arrest. After the bringing of the federal
indictment, an evidentiary hearing was held on the respondent's
motion to suppress statements he had made to police officers. This
hearing revealed only that the respondent had been intoxicated at
the time of his arrest; that his clothing had been disheveled, and
he had had a bloodstain on his face; that the incident had involved
a Navajo girl; and that the respondent claimed that he had been
trying to help the girl, who had been attacked by several other
boys.
[
Footnote 2]
The record does not reveal how the sentence of the Navajo Tribal
Court was carried out.
[
Footnote 3]
The indictment charged that
"[o]n or about the 16th day of October, 1974, in the District of
Arizona, on and within the Navajo Indian Reservation, Indian
Country, ANTHONY ROBERT WHEELER, an Indian male, did carnally know
a female Indian . . . not his wife, who had not then attained the
age of sixteen years but was fifteen years of age. In violation of
Title 18, United States Code, Sections 1153 and 2032."
At the time of the indictment, 18 U.S.C. § 1153 provided in
relevant part:
"Any Indian who commits against the person or property of
another Indian or other person any of the following offenses,
namely, . . . carnal knowledge of any female, not his wife, who has
not attained the age of sixteen years, . . . within the Indian
country, shall be subject to the same laws and penalties as all
other persons committing any of the above offenses, within the
exclusive jurisdiction of the United States."
The Major Crimes Act has since been amended in respects not
relevant here. Indian Crimes Act of 1976, § 2, 90 Stat. 585.
Title 18 U.S.C. § 2032 (1976 ed.), applicable within areas of
exclusive federal jurisdiction, punishes carnal knowledge of any
female under 16 years of age who is not the defendant's wife by
imprisonment for up to 15 years.
[
Footnote 4]
The holding of the District Court and the Court of Appeals that
the tribal offense of contributing to the delinquency of a minor
was included within the federal offense of statutory rape is not
challenged here by the Government.
[
Footnote 5]
The decision of the District Court is unreported.
[
Footnote 6]
In a later case, the Court of Appeals for the Eighth Circuit
held that the Double Jeopardy Clause does not bar successive tribal
and federal prosecutions for the same offense, expressly rejecting
the view of the Ninth Circuit in the present case.
United
States v. Walking Crow, 560 F.2d 386.
See also United
States v. Elk, 561 F.2d 133 (CA8);
United States v. Kills
Plenty, 466 F.2d 240, 243 n. 3 (CA8).
[
Footnote 7]
Although the problems arising from concurrent federal and state
criminal jurisdiction had been noted earlier,
See Houston v.
Moore, 5 Wheat. 1, the Court did not clearly
address the issue until
Fox v. Ohio, 5
How. 410,
United States v.
Marigold, 9 How. 560, and
Moore v.
Illinois, 14 How. 13, in the mid-19th century.
Those cases upheld the power of States and the Federal Government
to make the same act criminal; in each case, the possibility of
consecutive state and federal prosecutions was raised as an
objection to concurrent jurisdiction, and was rejected by the Court
on the ground that such multiple prosecutions, if they occurred,
would not constitute double jeopardy. The first case in which
actual multiple prosecutions were upheld was
United States v.
Lanza, 260 U. S. 377,
involving a prosecution for violation of the Volstead Act, ch. 85,
41 Stat. 305, after a conviction for criminal violation of liquor
laws of the State of Washington.
[
Footnote 8]
In
Abbate itself, the petitioners had received prison
terms of three months on their state convictions, but faced up to
five years' imprisonment on the federal charge. 359 U.S. at
359 U. S. 195.
And in
Bartkus, the Court referred to
Screws v. United
States, 325 U. S. 91, in
which the same facts could give rise to a federal prosecution under
what are now 18 U.S.C. §§ 242 and 371 (1976 ed.) (which then
carried maximum penalties of one and two years' imprisonment) and a
state prosecution for murder, a capital offense.
"Were the federal prosecution of a comparatively minor offense
to prevent state prosecution of so grave an infraction of state
law, the result would be a shocking and untoward deprivation of the
historic right and obligation of the States to maintain peace and
order within their confines."
Bartkus v. Illinois, 359 U. S. 121,
359 U. S.
137.
[
Footnote 9]
The prohibition against double jeopardy had been made applicable
to the Philippines by Act of Congress. Act of July 1, 1902, § 5, 32
Stat. 692. In a previous case, the Court had held it unnecessary to
decide whether the Double Jeopardy Clause would have applied within
the Philippines of its own force in the absence of this statute.
Kepner v. United States, 195 U. S. 100,
195 U. S.
124-125.
[
Footnote 10]
Colliflower v. Garland, 342 F.2d 369, 379 (CA9).
[
Footnote 11]
Binns v. United States, 194 U.
S. 486,
194 U. S. 491;
De Lima v. Bidwell, 182 U. S. 1,
182 U. S.
196-197;
Mormon Church v. United States,
136 U. S. 1,
136 U. S. 42;
Murphy v. Ramsey, 114 U. S. 15,
114 U. S.
44-45.
[
Footnote 12]
Trenton v. New Jersey, 262 U.
S. 182,
262 U. S. 187;
Hunter v. Pittsburgh, 207 U. S. 161,
207 U. S.
178-179;
Williams v. Eggleston, 170 U.
S. 304,
170 U. S. 310;
Mount Pleasant v. Beckwith, 100 U.
S. 514,
100 U. S. 529;
see 2 E. McQuillin, Law of Municipal Corporations § 4.03
(3d ed.1966).
[
Footnote 13]
Indeed, in the
Shell Co. case, the Court noted that
Congress had given Puerto Rico "an autonomy similar to that of the
states. . . ." 302 U.S. at
302 U. S. 262.
[
Footnote 14]
Cf. United States v. Lanza, 260 U.S. at
260 U. S.
379-382, holding that a State's power to enact
prohibition laws did not derive from the Eighteenth Amendment's
provision that Congress and the States should have concurrent
jurisdiction in that area, but rather from the State's inherent
sovereignty.
[
Footnote 15]
See also Trenton v. New Jersey, supra at
262 U. S.
185-186;
Hunter v. Pittsburgh, supra at
207 U. S. 178;
Worcester v. Street R. Co., 196 U.
S. 539,
196 U. S. 548;
Barnes v. District of Columbia, 91 U. S.
540,
91 U. S.
544.
[
Footnote 16]
Indeed, the relationship of a Territory to the Federal
Government has been accurately compared to the relationship
between, a city and a State.
Dorr v. United States,
195 U. S. 138,
195 U. S.
147-148, quoting T. Cooley, General Principles of
Constitutional Law 164-165 (1880);
see National Bank v. County
of Yankton, 101 U. S. 129,
101 U. S.
133.
[
Footnote 17]
Cf. Gonzales v. Williams, 192 U. S.
1,
192 U. S. 13;
American Ins. Co. v.
Canter, 1 Pet. 511,
26 U. S.
542.
[
Footnote 18]
Thus, unless limited by treaty or statute, a tribe has the power
to determine tribe membership,
Cherokee Intermarriage
Cases, 203 U. S. 76;
Roff v. Burney, 168 U. S. 218,
168 U. S.
222-223; to regulate domestic relations among tribe
members,
Fisher v. District Court, 424 U.
S. 382;
cf. United States v. Quiver,
241 U. S. 602; and
to prescribe rules for the inheritance of property.
Jones v.
Meehan, 175 U. S. 1,
175 U. S. 29;
United States ex rel. Mackey
v. Coze, 18 How. 100.
[
Footnote 19]
See infra at
435 U. S.
326.
[
Footnote 20]
The first treaty was signed at Canyon de Chelly in 1849, and
ratified by Congress in 1850. 9 Stat. 974. The second treaty was
signed and ratified in 1868. 15 Stat. 667.
[
Footnote 21]
Title 18 U.S.C. § 1152 (1976 ed.) now provides:
"Except as otherwise expressly provided by law, the general laws
of the United States as to the punishment of offenses committed in
any place within the sole and exclusive jurisdiction of the United
States, except the District of Columbia, shall extend to the Indian
country."
"This section shall not extend to offenses committed by one
Indian against the person or property of another Indian, nor to any
Indian committing any offense in the Indian country who has been
punished by the local law of the tribe, or to any case where, by
treaty stipulation, the exclusive jurisdiction over such offenses
is or may be secured to the Indian tribes respectively."
Despite the statute's broad language, it does not apply to
crimes committed by non-Indians against non-Indians, which are
subject to state jurisdiction.
United States v. McBratney,
104 U. S. 621.
[
Footnote 22]
This statute is not applicable to the present case. The Major
Crimes Act, under which the instant prosecution was brought, was
enacted in 1885. Act of Mar. 3, 1885, § 9, 23 Stat. 385. It does
not contain any exception for Indiana punished under tribal law. We
need not decide whether this
"carefully limited intrusion of federal power into the otherwise
exclusive jurisdiction of the Indian tribes to punish Indians for
crimes committed on Indian land,"
"
United States v. Antelope, 430 U. S.
641,
430 U. S. 643 n. 1, deprives
a tribal court of jurisdiction over the enumerated offenses, since
the crimes to which the respondent pleaded guilty in the Navajo
Tribal Court are not among those enumerated in the Major Crimes
Act.
Cf. Oliphant v. Suquamish Indian Tribe, ante at
435 U. S. 203-204, n.
14."
[
Footnote 23]
See S.Rep. No. 268, 41st Cong., 3d Sess., 10
(1870):
"Their right of self government, and to administer justice among
themselves, after their rude fashion, even to the extent of
inflicting the death penalty, has never been questioned; and . . .
the Government has care fully abstained from attempting to regulate
their domestic affairs, and from punishing crime committed by one
Indian against another in the Indian country."
[
Footnote 24]
This Court has referred to treaties made with the Indians as
"not a grant of rights to the Indians, but a grant of rights from
them -- a reservation of those not granted."
United States v.
Winans, 198 U. S. 371,
198 U. S.
381.
[
Footnote 25]
The tribal court.s were established in 1958, and the
law-and-order provisions of the Tribal Code in 1959, by resolution
of the Navajo Tribal Council.
See Titles 7 and 17 of the
Navajo Tribal Code;
Oliver v. Udall, 113 U.S. App.D.C.
212, 306 F.2d 819.
[
Footnote 26]
Such Courts of Indian Offenses, or "CFR Courts," still exist on
approximately 30 reservations "in which traditional agencies for
the enforcement of tribal law and custom have broken down [and] no
adequate substitute has been provided." 25 CFR § 11.1(b) (1977). We
need not decide today whether such a court is an arm of the Federal
Government or, like the Navajo Tribal Court, derives its powers
from the inherent sovereignty of the tribe.
[
Footnote 27]
The Department of Interior, charged by statute with the
responsibility for "the management of all Indian affairs and of all
matters arising out of Indian relations," 25 U.S.C. § 2, clearly is
of the view that tribal self-government is a matter of retained
sovereignty, rather than congressional grant. Department of the
Interior, Federal Indian Law 398 (1958); Powers of Indian Tribes,
65 I.D. 14, 56 (1934).
See also 1 Final Report of the
American Indian Policy Review Commission 99-100, 126 (1977).
[
Footnote 28]
By emphasizing that the Navajo Tribe never lost its sovereign
power to try tribal criminals, we do not mean to imply that a tribe
which was deprived of that right by statute or treaty and then
regained it by Act of Congress would necessarily be an arm of the
Federal Government. That interesting question is not before us, and
we express no opinion thereon.
[
Footnote 29]
Cf. Mescalero Apache Tribe v. Jones, 411 U.
S. 145, holding that a business enterprise operated off
the reservation by a tribe was not a "federal instrumentality" free
from state taxation.
[
Footnote 30]
Federal jurisdiction also extends to crimes committed by an
Indian against a non-Indian which have not been punished in tribal
court, 18 U.S.C. § 1152 (1976 ed.);
see n 21,
supra, and to crimes over
which there is federal jurisdiction regardless of whether an Indian
is involved, such as assaulting a federal officer, 18 U.S.C. § 111
(1976 ed.).
Stone v. United States, 506 F.2d 561
(CA8).
[
Footnote 31]
See Keeble v. United States, 412 U.
S. 205,
412 U. S.
209-212, describing the reasons for enactment of the
Major Crimes Act, 18 U.S.C. § 1153 (1976 ed.).
[
Footnote 32]
Moreover, since federal criminal jurisdiction over Indians
extends as well to offenses as to which there is an independent
federal interest to be protected,
see n 30,
supra, the Federal Government
could be deprived of the power to protect those interests as
well.
[
Footnote 33]
"'Navaho' is not their own word for themselves. In their own
language, they are
dine, 'The People.' . . . This term is
a constant reminder that the Navahos still constitute a society in
which each individual has a strong sense of belonging with the
others who speak the same language and, by the same token, a strong
sense of difference and isolation from the rest of humanity."
C. Kluckhohn & D. Leighton, The Navaho 23 (Rev.
ed.1974).
[
Footnote 34]
Traditional tribal justice tends to be informal and consensual,
rather than adjudicative, and often emphasizes restitution, rather
than punishment.
See 1 Final Report of the American Indian
Policy Review Commission 160-166 (1977); W. Hagan, Indian Police
and Judges 11-17 (1966); Van Valkenburgh, Navajo Common Law, 9
Museum of Northern Arizona Notes 17 (1936);
id. at 51
(1937); 10
id. at 37 (1938).
See generally
materials in M. Price, Law and the American Indian 133-150, 712-716
(1973).
[
Footnote 35]
Tribal courts of all kinds, including Courts of Indian Offenses,
see n 26,
supra, handled an estimated 70,000 cases in 1973. 1 Final
Report of the American Indian Policy Review Commission 163-164
(1977).