Walker, Ex Parte Calvin Gary ( 2016 )

PD-0358_0363-16
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/9/2016 3:26:19 PM
Accepted 6/10/2016 10:57:11 AM
PD NO. 0358-16 ABEL ACOSTA
CLERK
PD NO. 0359-16
PD NO. 0360-16
PD NO. 0361-16
PD NO. 0362-16
PD NO. 0363-16
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
June 10, 2016 CALVIN WALKER, Petitioner
VS.
THE STATE OF TEXAS, Respondent
_____________________________________________________________________________
SUPPLEMENT TO WALKER’S
PETITION FOR DISCRETIONARY REVIEW
______________________________________________________________________________
TO THE HONORABLE JUSTICES OF SAID COURT:
The Supreme Court of the United States recently decided an important case involving
double jeopardy and the dual-sovereignty doctrine. See Puerto Rico v. Sanchez Valle, No. 15-108,
597 U.S. ___ (June 9, 2016), attached as Appendix A. In that case, the Court decided that Puerto
Rico derives its prosecutorial power from the federal government, and therefore, it is not a separate
sovereign for double jeopardy purposes. See id. Justice Kagan delivered the Court’s opinion, in
which Chief Justice Roberts and Justices Kennedy, Ginsburg, and Alito joined. Justice Ginsburg
also authored a separate, concurring opinion in which Justice Thomas joined. Justice Ginsburg’s
concurrence significantly impacts the analysis of whether Walker presented a viable claim for
relief in his pretrial habeas applications.
In the district court, Walker contended that the six state indictments filed against him were
barred from prosecution because he had resolved the very same alleged criminal conduct in a
previous federal plea agreement. The district court denied the relief sought by the habeas
applications, and Walker appealed. Both the district court and the court of appeals expressed doubt
as to whether the so-called Bartkus exception to the dual-sovereignty doctrine was an exception at
all. See Ex parte Walker, __ S.W.3d __, 2016 WL 908374 at *6-9 (Tex. App.—Beaumont March
9, 2016); District Court Order at 2-3. Justice Ginsburg’s concurrence reveals that at least two
Justices of the Supreme Court believe that such an exception does exist. Even more relevant here,
the concurrence also makes it clear that at least two Justices believe that a person should not be
subject to multiple punishments for the same criminal conduct by separate sovereigns, without
regard to the inter-relatedness of the two sovereigns. Justice Ginsburg wrote:
I join in full the Court’s opinion, which cogently applies long prevailing doctrine.
I write only to flag a larger question that bears fresh examination in an appropriate
case. The double jeopardy proscription is intended to shield individuals from the
harassment of multiple prosecutions for the same misconduct. Green v. United
States, 355 U.S. 184, 187, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957). Current “separate
sovereigns” doctrine hardly serves that objective. States and Nation are “kindred
systems,” yet “parts of ONE WHOLE.” The Federalist No. 82, p. 245 (J. Hopkins
ed., 2d ed. 1802) (reprint 2008). Within that whole is it not “an affront to human
dignity,” Abbate v. United States, 359 U.S. 187, 203, 79 S. Ct. 666, 3 L. Ed. 2d 729
(1959) (Black, J., dissenting), “inconsistent with the spirit of [our] Bill of Rights,”
Developments in the Law—Criminal Conspiracy, 72 Harv. L.Rev. 920, 968 (1959),
to try or punish a person twice for the same offense? Several jurists and
commentators have suggested that the question should be answered with a
resounding yes: Ordinarily, a final judgment in a criminal case, just as a final
judgment in a civil case, should preclude renewal of the fray anyplace in the
Nation. See Bartkus v. Illinois, 359 U.S. 121, 150, 79 S. Ct. 676, 3 L. Ed. 2d 684
(1959) (Black, J., dissenting); United States v. All Assets of G.P.S. Automotive
Corp., 66 F.3d 483 (C.A.2 1995) (Calabresi, J.); Franck, An International Lawyer
Looks at the Bartkus Rule, 34 N.Y.U.L.Rev. 1096 (1959); Grant, Successive
Prosecutions by State and Nation: Common Law and British Empire Comparisons,
4 UCLA L.Rev. 1 (1956); Grant, The Lanza Rule of Successive Prosecutions, 32
Colum. L.Rev. 1309 (1932). See also 6 W. LaFave, J. Israel, N. King, & O. Kerr,
Criminal Procedure § 25.5(a), p. 851 (4th ed. 2015) (“Criticism of Abbate [‘s
separate sovereign exception] intensified after the Supreme Court held that the
Double Jeopardy Clause of the Fifth Amendment was also applicable to the
states....“ (citing, inter alia, Braun, Praying to False Sovereigns: The Rule
Permitting Successive Prosecutions in the Age of Cooperative Federalism, 20 Am.
J.Crim. L. 1 (1992))). The matter warrants attention in a future case in which a
defendant faces successive prosecutions by parts of the whole USA.
Sanchez Valle, No. 15-108, 579 U.S. __ (Ginsburg, J., concurring).
The key takeaway from Sanchez Valle with respect to Walker’s claims is that one of the
most liberal and one of the conservative Justices on our country’s highest court agree that a federal
prosecution should bar a state prosecution for the same conduct. The degree of cooperation
between those sovereigns is not the issue. The issue is whether the same conduct is prosecuted.
The recent decision in Sanchez Valle merits remand to the district court for proper
consideration of Walker’s habeas applications.
Respectfully submitted,
DEGUERIN, DICKSON, HENNESSY & WARD
/s/Dick DeGuerin
Dick DeGuerin
State Bar No. 05638000
Matt Hennessy
State Bar No. 00787677
1018 Preston, 7th Floor
Houston, Texas 77002
(713) 223-5959 Telephone
(713) 223-9231 Facsimile
Attorneys for Petitioner
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Supplement to Walker’s
Petition for Discretionary Review, has been delivered to the following parties via electronic filing
on June 8, 2016:
Wayln G. Thompson
Assistant District Attorney
1085 Pearl St.
Beaumont, Texas 77701
Lisa McMinn
State Prosecuting Attorney
P O Box 13406
Austin, Texas 78711
/s/Dick DeGuerin
Dick DeGuerin
(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
COMMONWEALTH OF PUERTO RICO v. SANCHEZ
VALLE ET AL.
CERTIORARI TO THE SUPREME COURT OF PUERTO RICO
No. 15–108. Argued January 13, 2016—Decided June 9, 2016
Respondents Luis Sánchez Valle and Jaime Gómez Vázquez each sold a
gun to an undercover police officer. Puerto Rican prosecutors indict­
ed them for illegally selling firearms in violation of the Puerto Rico
Arms Act of 2000. While those charges were pending, federal grand
juries also indicted them, based on the same transactions, for viola­
tions of analogous U. S. gun trafficking statutes. Both defendants
pleaded guilty to the federal charges and moved to dismiss the pend­
ing Commonwealth charges on double jeopardy grounds. The trial
court in each case dismissed the charges, rejecting prosecutors’ ar­
guments that Puerto Rico and the United States are separate sover­
eigns for double jeopardy purposes and so could bring successive
prosecutions against each defendant. The Puerto Rico Court of Ap­
peals consolidated the cases and reversed. The Supreme Court of
Puerto Rico granted review and held, in line with the trial court, that
Puerto Rico’s gun sale prosecutions violated the Double Jeopardy
Clause.
Held: The Double Jeopardy Clause bars Puerto Rico and the United
States from successively prosecuting a single person for the same
conduct under equivalent criminal laws. Pp. 5–18.
(a) Ordinarily, a person cannot be prosecuted twice for the same of­
fense. But under the dual-sovereignty doctrine, the Double Jeopardy
Clause does not bar successive prosecutions if they are brought by
separate sovereigns. See, e.g., United States v. Lanza, 260 U.S. 377,
382. Yet “sovereignty” in this context does not bear its ordinary
meaning. This Court does not examine the extent of control that one
prosecuting entity wields over the other, the degree to which an enti­
ty exercises self-governance, or a government’s more particular abil­
ity to enact and enforce its own criminal laws. Rather, the test hinges
2 PUERTO RICO v. SANCHEZ VALLE
Syllabus
on a single criterion: the “ultimate source” of the power undergird-
ing the respective prosecutions. United States v. Wheeler, 435 U.S.
313, 320. If two entities derive their power to punish from independ­
ent sources, then they may bring successive prosecutions. Converse­
ly, if those entities draw their power from the same ultimate source,
then they may not.
Under that approach, the States are separate sovereigns from the
Federal Government and from one another. Because States rely on
“authority originally belonging to them before admission to the Union
and preserved to them by the Tenth Amendment,” state prosecutions
have their roots in an “inherent sovereignty” unconnected to the U. S.
Congress. Heath v. Alabama, 474 U.S. 82, 89. For similar reasons,
Indian tribes also count as separate sovereigns. A tribe’s power to
punish pre-existed the Union, and so a tribal prosecution, like a
State’s, is “attributable in no way to any delegation . . . of federal au­
thority.” Wheeler, 435 U.S., at 328. Conversely, a municipality can­
not count as a sovereign distinct from a State, because it receives its
power, in the first instance, from the State. See, e.g., Waller v. Flori-
da, 397 U.S. 387, 395. And most pertinent here, this Court conclud­
ed in the early 20th century that U. S. territories—including an ear­
lier incarnation of Puerto Rico itself—are not sovereigns distinct from
the United States. Grafton v. United States, 206 U.S. 333. The
Court reasoned that “the territorial and federal laws [were] creations
emanating from the same sovereignty,” Puerto Rico v. Shell Co. (P.
R.), Ltd., 302 U.S. 253, 264, and so federal and territorial prosecu­
tors do not derive their powers from independent sources of authori­
ty. Pp. 5–11.
(b) The Grafton and Shell Co. decisions, in and of themselves, do
not control here. In the mid-20th century, Puerto Rico became a new
kind of political entity, still closely associated with the United States
but governed in accordance with, and exercising self-rule through, a
popularly-ratified constitution. The magnitude of that change re­
quires consideration of the dual-sovereignty question anew. Yet the
result reached, given the historical test applied, ends up the same.
Going back as far as the doctrine demands—to the “ultimate source”
of Puerto Rico’s prosecutorial power—reveals, once again, the U. S.
Congress. Wheeler, 435 U.S., at 320. Pp. 12–18.
(1) In 1950, Congress enacted Public Law 600, which authorized
the people of Puerto Rico to organize a government pursuant to a
constitution of their own adoption. The Puerto Rican people capital­
ized on that opportunity, calling a constitutional convention and
overwhelmingly approving the charter it drafted. Once Congress ap­
proved that proposal—subject to several important conditions accept­
ed by the convention—the Commonwealth of Puerto Rico, a new po­
Cite as: 579 U. S. ____ (2016) 3
Syllabus
litical entity, came into being.
Those constitutional developments were of great significance—and,
indeed, made Puerto Rico “sovereign” in one commonly understood
sense of that term. At that point, Congress granted Puerto Rico a de­
gree of autonomy comparable to that possessed by the States. If the
dual-sovereignty doctrine hinged on measuring an entity’s self-
governance, the emergence of the Commonwealth would have result­
ed as well in the capacity to bring the kind of successive prosecutions
attempted here. Pp. 13–14.
(2) But the dual-sovereignty test focuses not on the fact of self-
rule, but on where it first came from. And in identifying a prosecut­
ing entity’s wellspring of authority, the Court has insisted on going
all the way back—beyond the immediate, or even an intermediate, lo­
cus of power to what is termed the “ultimate source.” On this settled
approach, Puerto Rico cannot benefit from the dual-sovereignty doc­
trine. True enough, that the Commonwealth’s power to enact and en­
force criminal law now proceeds, just as petitioner says, from the
Puerto Rico Constitution as “ordain[ed] and establish[ed]” by “the
people.” P. R. Const., Preamble. But back of the Puerto Rican people
and their Constitution, the “ultimate” source of prosecutorial power
remains the U. S. Congress. Congress, in Public Law 600, authorized
Puerto Rico’s constitution-making process in the first instance, and
Congress, in later legislation, both amended the draft charter and
gave it the indispensable stamp of approval. Put simply, Congress
conferred the authority to create the Puerto Rico Constitution, which
in turn confers the authority to bring criminal charges. That makes
Congress the original source of power for Puerto Rico’s prosecutors—
as it is for the Federal Government’s. The island’s Constitution, sig­
nificant though it is, does not break the chain. Pp. 14–18.
Affirmed.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, GINSBURG, and ALITO, JJ., joined. GINSBURG, J.,
filed a concurring opinion, in which THOMAS, J., joined. THOMAS, J.,
filed an opinion concurring in part and concurring in the judgment.
BREYER, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.
Cite as: 579 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–108
_________________
COMMONWEALTH OF PUERTO RICO, PETITIONER v.
LUIS M. SANCHEZ VALLE, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
PUERTO RICO
[June 9, 2016]
JUSTICE KAGAN delivered the opinion of the Court.
The Double Jeopardy Clause of the Fifth Amendment
prohibits more than one prosecution for the “same of­
fence.” But under what is known as the dual-sovereignty
doctrine, a single act gives rise to distinct offenses—and
thus may subject a person to successive prosecutions—if it
violates the laws of separate sovereigns. To determine
whether two prosecuting authorities are different sover­
eigns for double jeopardy purposes, this Court asks a
narrow, historically focused question. The inquiry does
not turn, as the term “sovereignty” sometimes suggests, on
the degree to which the second entity is autonomous from
the first or sets its own political course. Rather, the issue
is only whether the prosecutorial powers of the two juris­
dictions have independent origins—or, said conversely,
whether those powers derive from the same “ultimate
source.” United States v. Wheeler, 435 U.S. 313, 320
(1978).
In this case, we must decide if, under that test, Puerto
Rico and the United States may successively prosecute a
single defendant for the same criminal conduct. We hold
2 PUERTO RICO v. SANCHEZ VALLE
Opinion of the Court
they may not, because the oldest roots of Puerto Rico’s
power to prosecute lie in federal soil.
I
A
Puerto Rico became a territory of the United States in
1898, as a result of the Spanish-American War. The
treaty concluding that conflict ceded the island, then a
Spanish colony, to the United States, and tasked Congress
with determining “[t]he civil rights and political status” of
its inhabitants. Treaty of Paris, Art. 9, Dec. 10, 1898, 30
Stat. 1759. In the ensuing hundred-plus years, the United
States and Puerto Rico have forged a unique political
relationship, built on the island’s evolution into a constitu­
tional democracy exercising local self-rule.
Acting pursuant to the U. S. Constitution’s Territory
Clause, Congress initially established a “civil government”
for Puerto Rico possessing significant authority over in­
ternal affairs. Organic Act of 1900, ch. 191, 31 Stat. 77;
see U. S. Const., Art. IV, §3, cl. 2 (granting Congress the
“Power to dispose of and make all needful Rules and Regu­
lations respecting the Territory or other Property belong­
ing to the United States”). The U. S. President, with the
advice and consent of the Senate, appointed the governor,
supreme court, and upper house of the legislature; the
Puerto Rican people elected the lower house themselves.
See §§17–35, 31 Stat. 81–85. Federal statutes generally
applied (as they still do) in Puerto Rico, but the newly
constituted legislature could enact local laws in much the
same way as the then-45 States. See §§14–15, 32, id., at
80, 83–84; Puerto Rico v. Shell Co. (P. R.), Ltd., 302 U.S.
253, 261 (1937).
Over time, Congress granted Puerto Rico additional
autonomy. A federal statute passed in 1917, in addition to
giving the island’s inhabitants U. S. citizenship, replaced
the upper house of the legislature with a popularly elected
Cite as: 579 U. S. ____ (2016) 3
Opinion of the Court
senate. See Organic Act of Puerto Rico, ch. 145, §§5, 26,
39 Stat. 953, 958. And in 1947, an amendment to that law
empowered the Puerto Rican people to elect their own
governor, a right never before accorded in a U. S. territory.
See Act of Aug. 5, 1947, ch. 490, §1, 61 Stat. 770.
Three years later, Congress enabled Puerto Rico to
embark on the project of constitutional self-governance.
Public Law 600, “recognizing the principle of government
by consent,” authorized the island’s people to “organize a
government pursuant to a constitution of their own adop­
tion.” Act of July 3, 1950, §1, 64 Stat. 319. Describing
itself as “in the nature of a compact,” the statute submit­
ted its own terms to an up-or-down referendum of Puerto
Rico’s voters. Ibid. According to those terms, the eventual
constitution had to “provide a republican form of govern­
ment” and “include a bill of rights”; all else would be
hashed out in a constitutional convention. §2, 64 Stat.
319. The people of Puerto Rico would be the first to de­
cide, in still another referendum, whether to adopt that
convention’s proposed charter. See §3, 64 Stat. 319. But
Congress would cast the dispositive vote: The constitution,
Public Law 600 declared, would become effective only
“[u]pon approval by the Congress.” Ibid.
Thus began two years of constitution-making for the
island. The Puerto Rican people first voted to accept
Public Law 600, thereby triggering a constitutional con­
vention. And once that body completed its work, the
island’s voters ratified the draft constitution. Congress
then took its turn on the document: Before giving its
approval, Congress removed a provision recognizing vari­
ous social welfare rights (including entitlements to food,
housing, medical care, and employment); added a sentence
prohibiting certain constitutional amendments, including
any that would restore the welfare-rights section; and
inserted language guaranteeing children’s freedom to
attend private schools. See Act of July 3, 1952, 66 Stat.
4 PUERTO RICO v. SANCHEZ VALLE
Opinion of the Court
327; Draft Constitution of the Commonwealth of Puerto
Rico (1952), in Documents on the Constitutional Relation­
ship of Puerto Rico and the United States 199 (M. Ramirez
Lavandero ed., 3d ed. 1988). Finally, the constitution
became law, in the manner Congress had specified, when
the convention formally accepted those conditions and the
governor “issue[d] a proclamation to that effect.” Ch. 567,
66 Stat. 328.
The Puerto Rico Constitution created a new political
entity, the Commonwealth of Puerto Rico—or, in Spanish,
Estado Libre Asociado de Puerto Rico. See P. R. Const.,
Art. I, §1. Like the U. S. Constitution, it divides political
power into three branches—the “legislative, judicial and
executive.” Art. I, §2. And again resonant of American
founding principles, the Puerto Rico Constitution de­
scribes that tripartite government as “republican in form”
and “subordinate to the sovereignty of the people of Puerto
Rico.” Ibid. The Commonwealth’s power, the Constitution
proclaims, “emanates from the people and shall be exer­
cised in accordance with their will, within the terms of the
compact agreed upon between the people of Puerto Rico
and the United States.” Art. I, §1.
B
We now leave the lofty sphere of constitutionalism for
the grittier precincts of criminal law. Respondents Luis
Sánchez Valle and Jaime Gómez Vázquez (on separate
occasions) each sold a gun to an undercover police officer.
Commonwealth prosecutors indicted them for, among
other things, selling a firearm without a permit in viola­
tion of the Puerto Rico Arms Act of 2000. See 25 Laws
P. R. Ann. §458 (2008). While those charges were pend­
ing, federal grand juries indicted Sánchez Valle and
Gómez Vázquez, based on the same transactions, for
violations of analogous U. S. gun trafficking statutes. See
18 U.S. C. §§922(a)(1)(A), 923(a), 924(a)(1)(D), 924(a)(2).
Cite as: 579 U. S. ____ (2016) 5
Opinion of the Court
Both defendants pleaded guilty to those federal charges.
Following their pleas, Sánchez Valle and Gómez
Vázquez moved to dismiss the pending Commonwealth
charges on double jeopardy grounds. The prosecutors in
both cases opposed those motions, arguing that Puerto
Rico and the United States are different sovereigns for
double jeopardy purposes, and so could bring successive
prosecutions against each of the two defendants. The trial
courts rejected that view and dismissed the charges. See
App. to Pet. for Cert. 307a–352a. But the Puerto Rico
Court of Appeals, after consolidating the two cases, re­
versed those decisions. See id., at 243a–306a.
The Supreme Court of Puerto Rico granted review and
held that Puerto Rico’s gun sale prosecutions violated the
Double Jeopardy Clause. See id., at 1a–70a. The majority
reasoned that, under this Court’s dual-sovereignty doc­
trine, “what is crucial” is “[t]he ultimate source” of Puerto
Rico’s power to prosecute. Id., at 19a; see id., at 20a (“The
use of the word ‘sovereignty’ in other contexts and for
other purposes is irrelevant”). Because that power origi­
nally “derived from the United States Congress”—i.e., the
same source on which federal prosecutors rely—the Com­
monwealth could not retry Sánchez Valle and Gómez
Vázquez for unlawfully selling firearms. Id., at 66a.
Three justices disagreed, believing that the Common­
wealth and the United States are separate sovereigns.
See id., at 71a–242a.
We granted certiorari, 576 U. S. ___ (2015), to determine
whether the Double Jeopardy Clause bars the Federal
Government and Puerto Rico from successively prosecut­
ing a defendant on like charges for the same conduct. We
hold that it does, and so affirm.
II
A
This case involves the dual-sovereignty carve-out from
6 PUERTO RICO v. SANCHEZ VALLE
Opinion of the Court
the Double Jeopardy Clause. The ordinary rule under
that Clause is that a person cannot be prosecuted twice for
the same offense. See U. S. Const., Amdt. 5 (“nor shall
any person be subject for the same offence to be twice put
in jeopardy of life or limb”).1 But two prosecutions, this
Court has long held, are not for the same offense if
brought by different sovereigns—even when those actions
target the identical criminal conduct through equivalent
criminal laws. See, e.g., United States v. Lanza, 260 U.S.
377, 382 (1922). As we have put the point: “[W]hen the
same act transgresses the laws of two sovereigns, it cannot
be truly averred that the offender has been twice punished
for the same offence; but only that by one act he has com­
mitted two offences.” Heath v. Alabama, 474 U.S. 82, 88
(1985) (internal quotation marks omitted). The Double
Jeopardy Clause thus drops out of the picture when the
“entities that seek successively to prosecute a defendant
for the same course of conduct [are] separate sovereigns.”
Ibid.
Truth be told, however, “sovereignty” in this context
does not bear its ordinary meaning. For whatever reason,
the test we have devised to decide whether two govern­
ments are distinct for double jeopardy purposes overtly
disregards common indicia of sovereignty. Under that
standard, we do not examine the “extent of control” that
“one prosecuting authority [wields] over the other.”
Wheeler, 435 U.S., at 320. The degree to which an entity
exercises self-governance—whether autonomously manag­
ing its own affairs or continually submitting to outside
direction—plays no role in the analysis. See Shell Co., 302
U.S., at 261–262, 264–266. Nor do we care about a gov­
——————
1 Because the parties in this case agree that the Double Jeopardy
Clause applies to Puerto Rico, we have no occasion to consider that
question here. See Brief for Petitioner 19–21; Brief for Respondents
20, n. 4; see also Brief for United States as Amicus Curiae 10, n. 1
(concurring).
Cite as: 579 U. S. ____ (2016) 7
Opinion of the Court
ernment’s more particular ability to enact and enforce its
own criminal laws. See Waller v. Florida, 397 U.S. 387,
391–395 (1970). In short, the inquiry (despite its label)
does not probe whether a government possesses the usual
attributes, or acts in the common manner, of a sovereign
entity.2
Rather, as Puerto Rico itself acknowledges, our test
hinges on a single criterion: the “ultimate source” of the
power undergirding the respective prosecutions. Wheeler,
435 U.S., at 320; see Brief for Petitioner 26. Whether two
prosecuting entities are dual sovereigns in the double
jeopardy context, we have stated, depends on “whether
[they] draw their authority to punish the offender from
distinct sources of power.” Heath, 474 U.S., at 88. The
inquiry is thus historical, not functional—looking at the
deepest wellsprings, not the current exercise, of prosecuto­
rial authority. If two entities derive their power to punish
from wholly independent sources (imagine here a pair of
parallel lines), then they may bring successive prosecu­
tions. Conversely, if those entities draw their power from
the same ultimate source (imagine now two lines emerging
from a common point, even if later diverging), then they
——————
2 The dissent, ignoring our longstanding precedent to the contrary,
see supra, at 6–7; infra, at 7–11, advances an approach of just this
stripe: Its seven considerations all go to the question whether the
Commonwealth, by virtue of Public Law 600, gained “the sovereign
authority to enact and enforce” its own criminal laws. Post, at 5 (opin­
ion of BREYER, J.). Our disagreement with the dissent arises entirely
from its use of this test. If the question is whether, after the events of
1950–1952, Puerto Rico had authority to enact and enforce its own
criminal laws (or, slightly differently phrased, whether Congress then
decided that it should have such autonomy), the answer (all can and do
agree) is yes. See infra, at 13–17. But as we now show, that is not the
inquiry our double jeopardy law has made relevant: To the contrary, we
have rejected that approach again and again—and so reached results
inconsistent with its use. See, e.g., Heath v. Alabama, 474 U.S. 82, 88–
91 (1985); Waller v. Florida, 397 U.S. 387, 391–395 (1970); see infra, at
7–11.
8 PUERTO RICO v. SANCHEZ VALLE
Opinion of the Court
may not.3
Under that approach, the States are separate sovereigns
from the Federal Government (and from one another). See
Abbate v. United States, 359 U.S. 187, 195 (1959); Bartkus
v. Illinois, 359 U.S. 121, 132–137 (1959); Heath, 474 U.S.,
at 88. The States’ “powers to undertake criminal prosecu­
tions,” we have explained, do not “derive[ ] . . . from the
Federal Government.” Id., at 89. Instead, the States rely
on “authority originally belonging to them before admis­
sion to the Union and preserved to them by the Tenth
Amendment.” Ibid.; see U. S. Const., Amdt. 10 (“The
powers not delegated to the United States by the Constitu­
tion . . . are reserved to the States”); Blatchford v. Native
Village of Noatak, 501 U.S. 775, 779 (1991) (noting that
the States “entered the [Union] with their sovereignty
intact”). Said otherwise: Prior to forming the Union, the
States possessed “separate and independent sources of
power and authority,” which they continue to draw upon
in enacting and enforcing criminal laws. Heath, 474 U.S.,
at 89. State prosecutions therefore have their most an­
cient roots in an “inherent sovereignty” unconnected to,
and indeed pre-existing, the U. S. Congress. Ibid.4
——————
3 The Court has never explained its reasons for adopting this histori­
cal approach to the dual-sovereignty doctrine. It may appear counter­
intuitive, even legalistic, as compared to an inquiry focused on a gov­
ernmental entity’s functional autonomy. But that alternative would
raise serious problems of application. It would require deciding exactly
how much autonomy is sufficient for separate sovereignty and whether
a given entity’s exercise of self-rule exceeds that level. The results, we
suspect, would often be uncertain, introducing error and inconsistency
into our double jeopardy law. By contrast, as we go on to show, the
Court has easily applied the “ultimate source” test to classify broad
classes of governments as either sovereign or not for purposes of bar­
ring retrials. See infra, at 8–11.
4 Literalists might object that only the original 13 States can claim
such an independent source of authority; for the other 37, Congress
played some role in establishing them as territories, authorizing or
approving their constitutions, or (at the least) admitting them to the
Cite as: 579 U. S. ____ (2016) 9
Opinion of the Court
For similar reasons, Indian tribes also count as separate
sovereigns under the Double Jeopardy Clause. Originally,
this Court has noted, “the tribes were self-governing sov­
ereign political communities,” possessing (among other
capacities) the “inherent power to prescribe laws for their
members and to punish infractions of those laws.”
Wheeler, 435 U.S., at 322–323. After the formation of the
United States, the tribes became “domestic dependent
nations,” subject to plenary control by Congress—so hardly
“sovereign” in one common sense. United States v.
Lara, 541 U.S. 193, 204 (2004) (quoting Cherokee Nation
v. Georgia, 5 Pet. 1, 17 (1831)); see Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 56 (1978) (“Congress has plenary
——————
Union. See U. S. Const., Art. IV, §3, cl. 1 (“New States may be admit­
ted by the Congress into this Union”). And indeed, that is the tack the
dissent takes. See post, at 3–4 (claiming that for this reason the
Federal Government is “the ‘source’ of [later-admitted] States’ legisla­
tive powers”). But this Court long ago made clear that a new State,
upon entry, necessarily becomes vested with all the legal characteris­
tics and capabilities of the first 13. See Coyle v. Smith, 221 U.S. 559,
566 (1911) (noting that the very meaning of “ ‘a State’ is found in the
powers possessed by the original States which adopted the Constitu­
tion”). That principle of “equal footing,” we have held, is essential to
ensure that the nation remains “a union of States[ alike] in power,
dignity and authority, each competent to exert that residuum of sover­
eignty not delegated to the United States.” Id., at 567; see Northwest
Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193, 203
(2009) (referring to the “fundamental principle of equal sovereignty”
among the States). Thus, each later-admitted State exercises its
authority to enact and enforce criminal laws by virtue not of congres­
sional grace, but of the independent powers that its earliest counter­
parts both brought to the Union and chose to maintain. See Coyle, 221
U.S., at 573 (“[W]hen a new State is admitted into the Union, it is so
admitted with all the powers of sovereignty and jurisdiction which
pertain to the original States”). The dissent’s contrary view—that, say,
Texas’s or California’s powers (including the power to make and enforce
criminal law) derive from the Federal Government—contradicts the
most fundamental conceptual premises of our constitutional order,
indeed the very bedrock of our Union.
10 PUERTO RICO v. SANCHEZ VALLE
Opinion of the Court
authority to limit, modify or eliminate the [tribes’] powers
of local self-government”). But unless and until Congress
withdraws a tribal power—including the power to prose­
cute—the Indian community retains that authority in its
earliest form. See Wheeler, 435 U.S., at 323. The “ulti­
mate source” of a tribe’s “power to punish tribal offenders”
thus lies in its “primeval” or, at any rate, “pre-existing”
sovereignty: A tribal prosecution, like a State’s, is “at­
tributable in no way to any delegation . . . of federal au­
thority.” Id., at 320, 322, 328; Santa Clara Pueblo, 436
U.S., at 56. And that alone is what matters for the double
jeopardy inquiry.
Conversely, this Court has held that a municipality
cannot qualify as a sovereign distinct from a State—no
matter how much autonomy over criminal punishment the
city maintains. See Waller, 397 U.S., at 395. Florida law,
we recognized in our pivotal case on the subject, treated a
municipality as a “separate sovereign entit[y]” for all
relevant real-world purposes: The city possessed broad
home-rule authority, including the power to enact criminal
ordinances and prosecute offenses. Id., at 391. But that
functional control was not enough to escape the double
jeopardy bar; indeed, it was wholly beside the point. The
crucial legal inquiry was backward-looking: Did the city
and State ultimately “derive their powers to prosecute
from independent sources of authority”? Heath, 474 U.S.,
at 90 (describing Waller’s reasoning). Because the munic­
ipality, in the first instance, had received its power from
the State, those two entities could not bring successive
prosecutions for a like offense.
And most pertinent here, this Court concluded in the
early decades of the last century that U. S. territories—
including an earlier incarnation of Puerto Rico itself—are
not sovereigns distinct from the United States. In Grafton
v. United States, 206 U.S. 333, 355 (1907), we held that
the Philippine Islands (then a U. S. territory, also ac­
Cite as: 579 U. S. ____ (2016) 11
Opinion of the Court
quired in the Spanish-American War) could not prosecute
a defendant for murder after a federal tribunal had ac­
quitted him of the same crime. We reasoned that whereas
“a State does not derive its powers from the United
States,” a territory does: The Philippine courts “exert[ed]
all their powers by authority of ” the Federal Government.
Id., at 354. And then, in Shell Co., we stated that “[t]he
situation [in Puerto Rico] was, in all essentials, the same.”
302 U.S., at 265. Commenting on a Puerto Rican statute
that overlapped with a federal law, we explained that this
“legislative duplication [gave] rise to no danger of a second
prosecution” because “the territorial and federal laws
[were] creations emanating from the same sovereignty.”
Id., at 264; see also Heath, 474 U.S., at 90 (noting
that federal and territorial prosecutors “d[o] not derive
their powers to prosecute from independent sources of
authority”).5
——————
5 The dissent’s theory, see supra, at 7, n. 2, cannot explain any of
these (many) decisions, whether involving States, Indian tribes, cities,
or territories. We have already addressed the dissent’s misunderstand­
ing with respect to the States, including the later-admitted ones. See
supra, at 8, and n. 4. This Court’s reasoning could not have been
plainer: The States (all of them) are separate sovereigns for double
jeopardy purposes not (as the dissent claims) because they exercise
authority over criminal law, but instead because that power derives
from a source independent of the Federal Government. See Heath, 474
U.S., at 89. So too for the tribes, see supra, at 9–10; and, indeed, here
the dissent’s contrary reasoning is deeply disturbing. According to the
dissent, Congress is in fact “the ‘source’ of the Indian tribes’ criminal-
enforcement power” because it has elected not to disturb the exercise of
that authority. Post, at 5. But beginning with Chief Justice Marshall
and continuing for nearly two centuries, this Court has held firm and
fast to the view that Congress’s power over Indian affairs does nothing
to gainsay the profound importance of the tribes’ pre-existing sover­
eignty. See Worcester v. Georgia, 6 Pet. 515, 559–561 (1832); Talton v.
Mayes, 163 U.S. 376, 384 (1896); Michigan v. Bay Mills Indian Com-
munity, 572 U. S. ___, ___–___ (2014) (slip op., at 4–5). And once again,
we have stated in no uncertain terms that the tribes are separate
sovereigns precisely because of that inherent authority. See Wheeler,
12 PUERTO RICO v. SANCHEZ VALLE
Opinion of the Court
B
With that background established, we turn to the ques­
tion presented: Do the prosecutorial powers belonging to
Puerto Rico and the Federal Government derive from
wholly independent sources? See Brief for Petitioner 26–
28 (agreeing with that framing of the issue). If so, the
criminal charges at issue here can go forward; but if not,
not. In addressing that inquiry, we do not view our deci­
sions in Grafton and Shell Co. as, in and of themselves,
controlling. Following 1952, Puerto Rico became a new
kind of political entity, still closely associated with the
United States but governed in accordance with, and exer­
cising self-rule through, a popularly ratified constitution.
The magnitude of that change requires us to consider the
dual-sovereignty question anew. And yet the result we
reach, given the legal test we apply, ends up the same.
Puerto Rico today has a distinctive, indeed exceptional,
status as a self-governing Commonwealth. But our ap­
proach is historical. And if we go back as far as our doc­
trine demands—to the “ultimate source” of Puerto Rico’s
——————
435 U.S., at 328. Next, the dissent cannot (and does not even try to)
explain our rule that a municipality is not a separate sovereign from a
State. See supra, at 10. As this Court has explicitly recognized, many
cities have (in the words of the dissent’s test) wide-ranging “authority
to make and enforce [their] own criminal laws,” post, at 5; still, they
cannot undertake successive prosecutions—because they received that
power from state governments, see Waller, 397 U.S., at 395. And
likewise (finally), the dissent fails to face up to our decisions that the
territories are not distinct sovereigns from the United States because
the powers they exercise are delegations from Congress. See Grafton v.
United States, 206 U.S. 333, 355 (1907); supra, at 10–11. That, of
course, is what makes them different from the current Philippines, see
post, at 2–3, whose relevance here is hard to fathom. As an independ­
ent nation, the Philippines wields prosecutorial power that is not
traceable to any congressional conferral of authority. And that, to
repeat, is what matters: If an entity’s capacity to make and enforce
criminal law ultimately comes from another government, then the two
are not separate sovereigns for double jeopardy purposes.
Cite as: 579 U. S. ____ (2016) 13
Opinion of the Court
prosecutorial power, Wheeler, 435 U.S., at 320—we once
again discover the U. S. Congress.
Recall here the events of the mid-20th century—when
Puerto Rico, just as petitioner contends, underwent a
profound change in its political system. See Brief for
Petitioner 1–2 (“[T]he people of Puerto Rico[ ] engaged in
an exercise of popular sovereignty . . . by adopting their
own Constitution establishing their own government to
enact their own laws”); supra, at 3–4. At that time, Con­
gress enacted Public Law 600 to authorize Puerto Rico’s
adoption of a constitution, designed to replace the federal
statute that then structured the island’s governance. The
people of Puerto Rico capitalized on that opportunity,
calling a constitutional convention and overwhelmingly
approving the charter it drafted. Once Congress approved
that proposal—subject to several important conditions
accepted by the convention—the Commonwealth, a new
political entity, came into being.
Those constitutional developments were of great signifi­
cance—and, indeed, made Puerto Rico “sovereign” in one
commonly understood sense of that term. As this Court
has recognized, Congress in 1952 “relinquished its control
over [the Commonwealth’s] local affairs[,] grant[ing]
Puerto Rico a measure of autonomy comparable to that
possessed by the States.” Examining Bd. of Engineers,
Architects and Surveyors v. Flores de Otero, 426 U.S. 572,
597 (1976); see id., at 594 (“[T]he purpose of Congress in
the 1950 and 1952 legislation was to accord to Puerto Rico
the degree of autonomy and independence normally associ­
ated with States of the Union”); Rodriguez v. Popular Demo-
cratic Party, 457 U.S. 1, 8 (1982) (“Puerto Rico, like a
state, is an autonomous political entity, sovereign over
matters not ruled by the [Federal] Constitution” (internal
quotation marks omitted)). That newfound authority,
including over local criminal laws, brought mutual benefit
to the Puerto Rican people and the entire United States.
14 PUERTO RICO v. SANCHEZ VALLE
Opinion of the Court
See Brief for United States as Amicus Curiae 3. And if our
double jeopardy decisions hinged on measuring an entity’s
self-governance, the emergence of the Commonwealth
would have resulted as well in the capacity to bring the
kind of successive prosecutions attempted here.
But as already explained, the dual-sovereignty test we
have adopted focuses on a different question: not on the
fact of self-rule, but on where it came from. See supra, at
7–8. We do not care, for example, that the States pres­
ently exercise autonomous control over criminal law and
other local affairs; instead, we treat them as separate
sovereigns because they possessed such control as an
original matter, rather than deriving it from the Federal
Government. See supra, at 8–9. And in identifying a
prosecuting entity’s wellspring of authority, we have
insisted on going all the way back—beyond the immediate,
or even an intermediate, locus of power to what we have
termed the “ultimate source.” Wheeler, 435 U.S., at 320.
That is why we have emphasized the “inherent,” “prime­
val,” and “pre-existing” capacities of the tribes and
States—the power they enjoyed prior to the Union’s for­
mation. Id., at 322–323, 328; Heath, 474 U.S., at 90;
Santa Clara Pueblo, 436 U.S., at 56; see supra, at 8–10.
And it is why cities fail our test even when they enact and
enforce their own criminal laws under their own, popu­
larly ratified charters: Because a State must initially
authorize any such charter, the State is the furthest-back
source of prosecutorial power. See Waller, 397 U.S., at
391–394; supra, at 10.
On this settled approach, Puerto Rico cannot benefit
from our dual-sovereignty doctrine. For starters, no one
argues that when the United States gained possession of
Puerto Rico, its people possessed independent prosecuto­
rial power, in the way that the States or tribes did upon
becoming part of this country. Puerto Rico was until then
a colony “under Spanish sovereignty.” Treaty of Paris,
Cite as: 579 U. S. ____ (2016) 15
Opinion of the Court
Art. 2, 30 Stat. 1755. And local prosecutors in the ensuing
decades, as petitioner itself acknowledges, exercised only
such power as was “delegated by Congress” through fed­
eral statutes. Brief for Petitioner 28; see Shell Co., 302
U.S., at 264–265; supra, at 10–11. Their authority de­
rived from, rather than pre-existed association with, the
Federal Government.
And contrary to petitioner’s claim, Puerto Rico’s trans-
formative constitutional moment does not lead to a differ­
ent conclusion. True enough, that the Commonwealth’s
power to enact and enforce criminal law now proceeds, just
as petitioner says, from the Puerto Rico Constitution as
“ordain[ed] and establish[ed]” by “the people.” P. R.
Const., Preamble; see Brief for Petitioner 28–30. But that
makes the Puerto Rican populace only the most immediate
source of such authority—and that is not what our dual-
sovereignty decisions make relevant. Back of the Puerto
Rican people and their Constitution, the “ultimate” source
of prosecutorial power remains the U. S. Congress, just as
back of a city’s charter lies a state government. Wheeler,
435 U.S., at 320. Congress, in Public Law 600, authorized
Puerto Rico’s constitution-making process in the first
instance; the people of a territory could not legally have
initiated that process on their own. See, e.g., Simms v.
Simms, 175 U.S. 162, 168 (1899). And Congress, in later
legislation, both amended the draft charter and gave it the
indispensable stamp of approval; popular ratification,
however meaningful, could not have turned the conven­
tion’s handiwork into law.6 Put simply, Congress con­
——————
6 Petitioner’s own statements are telling as to the role Congress nec­
essarily played in this constitutional process. See, e.g., Reply Brief 1–2
(“Pursuant to Congress’ invitation, and with Congress’ consent, the
people of Puerto Rico engaged in an exercise of popular sovereignty”);
id., at 7 (“The Commonwealth’s legal cornerstone is Public Law 600”);
Tr. of Oral Arg. 19 (describing the adoption of the Puerto Rico Constitu­
tion as “pursuant to the invitation of Congress and with the blessing of
16 PUERTO RICO v. SANCHEZ VALLE
Opinion of the Court
ferred the authority to create the Puerto Rico Constitu­
tion, which in turn confers the authority to bring criminal
charges. That makes Congress the original source of
power for Puerto Rico’s prosecutors—as it is for the Fed­
eral Government’s. The island’s Constitution, significant
though it is, does not break the chain.
Petitioner urges, in support of its different view, that
Congress itself recognized the new Constitution as “a
democratic manifestation of the [people’s] will,” Brief for
Petitioner 2—but far from disputing that point, we readily
acknowledge it to be so. As petitioner notes, Public Law
600 affirmed the “principle of government by consent” and
offered the Puerto Rican public a “compact,” under which
they could “organize a government pursuant to a constitu­
tion of their own adoption.” §1, 64 Stat. 319; see Brief for
Petitioner 2, 29; supra, at 3. And the Constitution that
Congress approved, as petitioner again underscores, de­
clares that “[w]e, the people” of Puerto Rico, “create” the
Commonwealth—a new political entity, “republican in
form,” in which the people’s will is “sovereign[ ]” over the
government. P. R. Const., Preamble and Art. I, §§1–2; see
Brief for Petitioner 2, 29–30; supra, at 4. With that
consented-to language, Congress “allow[ed] the people of
Puerto Rico,” in petitioner’s words, to begin a new chapter
of democratic self-governance. Reply Brief 20.
All that separates our view from petitioner’s is what
that congressional recognition means for Puerto Rico’s
ability to bring successive prosecutions. We agree that
Congress has broad latitude to develop innovative ap­
proaches to territorial governance, see U. S. Const., Art.
IV, §3, cl. 2; that Congress may thus enable a territory’s
people to make large-scale choices about their own politi­
cal institutions; and that Congress did exactly that in
enacting Public Law 600 and approving the Puerto Rico
——————
Congress”).
Cite as: 579 U. S. ____ (2016) 17
Opinion of the Court
Constitution—prime examples of what Felix Frankfurter
once termed “inventive statesmanship” respecting the
island. Memorandum for the Secretary of War, in Hear­
ings on S. 4604 before the Senate Committee on Pacific
Islands and Porto Rico, 63d Cong., 2d Sess., 22 (1914); see
Reply Brief 18–20. But one power Congress does not have,
just in the nature of things: It has no capacity, no magic
wand or airbrush, to erase or otherwise rewrite its own
foundational role in conferring political authority. Or
otherwise said, the delegator cannot make itself any less
so—no matter how much authority it opts to hand over.
And our dual-sovereignty test makes this historical fact
dispositive: If an entity’s authority to enact and enforce
criminal law ultimately comes from Congress, then it
cannot follow a federal prosecution with its own. That is
true of Puerto Rico, because Congress authorized and
approved its Constitution, from which prosecutorial power
now flows. So the Double Jeopardy Clause bars both
Puerto Rico and the United States from prosecuting a
single person for the same conduct under equivalent crim­
inal laws.
III
Puerto Rico boasts “a relationship to the United States
that has no parallel in our history.” Examining Bd., 426
U.S., at 596. And since the events of the early 1950’s, an
integral aspect of that association has been the Common­
wealth’s wide-ranging self-rule, exercised under its own
Constitution. As a result of that charter, Puerto Rico
today can avail itself of a wide variety of futures. But for
purposes of the Double Jeopardy Clause, the future is not
what matters—and there is no getting away from the past.
Because the ultimate source of Puerto Rico’s prosecutorial
power is the Federal Government—because when we trace
that authority all the way back, we arrive at the doorstep
of the U. S. Capitol—the Commonwealth and the United
18 PUERTO RICO v. SANCHEZ VALLE
Opinion of the Court
States are not separate sovereigns. That means the two
governments cannot “twice put” respondents Sánchez
Valle and Gómez Vázquez “in jeopardy” for the “same
offence.” U. S. Const., Amdt. 5. We accordingly affirm the
judgment of the Supreme Court of Puerto Rico.
It is so ordered.
Cite as: 579 U. S. ____ (2016) 1
GINSBURG, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–108
_________________
COMMONWEALTH OF PUERTO RICO, PETITIONER v.
LUIS M. SANCHEZ VALLE, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
PUERTO RICO
[June 9, 2016]
JUSTICE GINSBURG, with whom JUSTICE THOMAS joins,
concurring.
I join in full the Court’s opinion, which cogently applies
long prevailing doctrine. I write only to flag a larger
question that bears fresh examination in an appropriate
case. The double jeopardy proscription is intended to
shield individuals from the harassment of multiple prose-
cutions for the same misconduct. Green v. United States,
355 U.S. 184, 187 (1957). Current “separate sovereigns”
doctrine hardly serves that objective. States and Nation
are “kindred systems,” yet “parts of ONE WHOLE.” The
Federalist No. 82, p. 245 (J. Hopkins ed., 2d ed. 1802)
(reprint 2008). Within that whole is it not “an affront to
human dignity,” Abbate v. United States, 359 U.S. 187,
203 (1959) (Black, J., dissenting), “inconsistent with the
spirit of [our] Bill of Rights,” Developments in the Law—
Criminal Conspiracy, 72 Harv. L. Rev. 920, 968 (1959), to
try or punish a person twice for the same offense? Several
jurists and commentators have suggested that the ques-
tion should be answered with a resounding yes: Ordinar-
ily, a final judgment in a criminal case, just as a final
judgment in a civil case, should preclude renewal of the
fray anyplace in the Nation. See Bartkus v. Illinois, 359
U.S. 121, 150 (1959) (Black, J., dissenting); United States
v. All Assets of G. P. S. Automotive Corp., 66 F.3d 483
2 PUERTO RICO v. SANCHEZ VALLE
GINSBURG, J., concurring
(CA2 1995) (Calabresi, J.); Franck, An International Law-
yer Looks at the Bartkus Rule, 34 N. Y. U. L. Rev. 1096
(1959); Grant, Successive Prosecutions by State and Na-
tion: Common Law and British Empire Comparisons, 4
UCLA L. Rev. 1 (1956); Grant, The Lanza Rule of Succes-
sive Prosecutions, 32 Colum. L. Rev. 1309 (1932). See also
6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal
Procedure §25.5(a), p. 851 (4th ed. 2015) (“Criticism
of Abbate[’s separate sovereign exception] intensified
after the Supreme Court held that the Double Jeopardy
Clause of the Fifth Amendment was also applicable to the
states . . . .” (citing, inter alia, Braun, Praying to False
Sovereigns: The Rule Permitting Successive Prosecutions
in the Age of Cooperative Federalism, 20 Am. J. Crim. L. 1
(1992))). The matter warrants attention in a future case
in which a defendant faces successive prosecutions by
parts of the whole USA.
Cite as: 579 U. S. ____ (2016) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–108
_________________
COMMONWEALTH OF PUERTO RICO, PETITIONER v.
LUIS M. SANCHEZ VALLE, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
PUERTO RICO
[June 9, 2016]
JUSTICE THOMAS, concurring in part and concurring in
the judgment.
The Court today concludes that the Commonwealth of
Puerto Rico and the United States are not separate sover-
eigns because the Federal Government is the ultimate
source of Puerto Rico’s authority to prosecute crimes.
Ante, at 16. I agree with that holding, which hews to the
Court’s precedents concerning the Double Jeopardy Clause
and U. S. Territories. But I continue to have concerns
about our precedents regarding Indian law, see United
States v. Lara, 541 U.S. 193, 214–226 (2004) (opinion
concurring in judgment), and I cannot join the portions of
the opinion concerning the application of the Double Jeop-
ardy Clause to successive prosecutions involving Indian
tribes. Aside from this caveat, I join the Court’s opinion.
Cite as: 579 U. S. ____ (2016) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–108
_________________
COMMONWEALTH OF PUERTO RICO, PETITIONER v.
LUIS M. SANCHEZ VALLE, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
PUERTO RICO
[June 9, 2016]
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR joins,
dissenting.
I agree with the Court that this case poses a special, not
a general, question about Puerto Rico’s sovereignty. It
asks whether “the prosecutorial powers belonging to Puerto
Rico and the Federal Government derive from wholly
independent sources.” Ante, at 12. I do not agree, how-
ever, with the majority’s answer to that question. I do not
believe that “if we go back [through history] as far as our
doctrine demands” (i.e., “all the way back” to the “furthest­
back source of prosecutorial power”), we will “discover”
that Puerto Rico and the Federal Government share the
same source of power, namely, “the U. S. Congress.” Ante,
at 12–13, 14. My reasons for disagreeing with the major­
ity are in part conceptual and in part historical.
I
Conceptually speaking, the Court does not mean liter-
ally that to find the “source” of an entity’s criminal law, we
must seek the “furthest-back source of . . . power.” Ante, at
14 (emphasis added). We do not trace Puerto Rico’s source
of power back to Spain or to Rome or to Justinian, nor do
we trace the Federal Government’s source of power back to
the English Parliament or to William the Conqueror or to
King Arthur. Rather the Court’s statement means that we
2 PUERTO RICO v. SANCHEZ VALLE
BREYER, J., dissenting
should trace the source of power back to a time when a
previously nonexistent entity, or a previously dependent
entity, became independent—at least, sufficiently inde­
pendent to be considered “sovereign” for purposes of the
Double Jeopardy Clause.
As so viewed, this approach explains the Court’s deci­
sions fairly well. The Federal Government became an
independent entity when the Constitution first took effect.
That document gave to the Federal Government the au­
thority to enact criminal laws. And the Congress that the
document created is consequently the source of those laws.
The original 13 States, once dependents of Britain, became
independent entities perhaps at the time of the Declara­
tion of Independence, perhaps at the signing of the Treaty
of Paris, perhaps with the creation of the Articles of Con­
federation. (I need not be precise.) See G. Wood, Creation
of the American Republic 1776–1787, p. 354 (1969) (“The
problem of sovereignty was not solved by the Declaration
of Independence. It continued to be the most important
theoretical question of politics throughout the following
decade”). And an independent colony’s legislation-creating
system is consequently the source of those original State’s
criminal laws.
But the “source” question becomes more difficult with
respect to other entities because Congress had an active
role to play with respect to their creation (and thus con­
gressional activity appears to be highly relevant to the
double jeopardy question). Consider the Philippines. No
one could doubt the Philippines’ current possession of
sovereign authority to enact criminal laws. Yet if we
trace that power back through history, we must find the
“furthest-back” source of the islands’ lawmaking authority,
not in any longstanding independent Philippine institu­
tions (for until 1946 the Philippines was dependent, not
independent), but in a decision by Congress and the Presi­
dent (as well as by the Philippines) to change the Philip­
Cite as: 579 U. S. ____ (2016) 3
BREYER, J., dissenting
pines’ status to one of independence. In 1934 Congress
authorized the President to “withdraw and surrender all
right of . . . sovereignty” over the Philippines. 48 Stat.
463, codified at 22 U.S. C. §1394. That authorization
culminated in the Treaty of Manila, signed in 1946 and
approved by Congress that same year, which formally
recognized the Philippines as an independent, self-
governing nation-state. See 61 Stat. 1174. In any obvious
sense of the term, then, the “source” of the Philippines’
independence (and its ability to enact and enforce its own
criminal laws) was the U. S. Congress.
The same is true for most of the States. In the usual
course, a U. S. Territory becomes a State within our Union
at the invitation of Congress. In fact, the parallels be­
tween admission of new States and the creation of the
Commonwealth in this case are significant. Congress
passes a law allowing “the inhabitants of the territory . . .
to form for themselves a constitution and state govern­
ment, and to assume such name as they shall deem proper.”
Act of Apr. 16, 1818, ch. 67, 3 Stat. 428–429 (Illinois);
see also Act of June 20, 1910, ch. 310, 36 Stat. 557 (New
Mexico) (“[T]he qualified electors of the Territory . . . are
hereby authorized to vote for and choose delegates to form
a constitutional convention for said Territory for the pur­
pose of framing a constitution for the proposed State of
New Mexico”). And after the Territory develops and pro­
poses a constitution, Congress and the President review
and approve it before allowing the Territory to become a
full-fledged State. See, e.g., Res. 1, 3 Stat. 536 (Illinois);
Pub. Res. 8, 37 Stat. 39 (New Mexico); Presidential Proc­
lamation No. 62, 37 Stat. 1723 (“I WILLIAM HOWARD
TAFT, . . . declare and proclaim the fact that the funda­
mental conditions imposed by Congress on the State of
New Mexico to entitle that State to admission have been
ratified and accepted”). The Federal Government thus is
in an important sense the “source” of these States’ legisla­
4 PUERTO RICO v. SANCHEZ VALLE
BREYER, J., dissenting
tive powers.
One might argue, as this Court has argued, that the
source of new States’ sovereign authority to enact criminal
laws lies in the Constitution’s equal-footing doctrine—the
doctrine under which the Constitution treats new States
the same as it does the original 13. See ante, at 9, n. 4. It
is difficult, however, to characterize a constitutional in­
sistence upon equality of the States as (in any here rele­
vant sense) the “source” of those States’ independent
legislative powers. For one thing, the equal-footing doc­
trine is a requirement imposed by the U. S. Constitution.
See Coyle v. Smith, 221 U.S. 559, 566–567 (1911). For
that reason, the Constitution is ultimately the source of
even these new States’ equal powers (just as it is the
source of Congress’ powers). This is not to suggest that we
are not a “ ‘union of States [alike] in power, dignity and
authority.’ ” Ante, at 9, n. 4 (quoting Coyle, supra, at 567).
Of course I recognize that we are. It is merely to ask:
without the Constitution (i.e., a federal “source”), what
claim would new States have to a lawmaking power equal
to that of their “earliest counterparts”? Ante, at 9, n. 4.
For another thing, the equal-footing doctrine means
that, going forward, new States must enjoy the same
rights and obligations as the original States—they are, for
example, equally restricted by the First Amendment and
equally “competent to exert that residuum of sovereignty
not delegated to the United States by the Constitution
itself.” Coyle, supra, at 567. But this current and future
equality does not destroy the fact that there is a federal
“source” from which those rights and obligations spring:
the Congress which agreed to admit those new States into
the Union in accordance with the Constitution’s terms.
See, e.g., 37 Stat. 39 (“The Territor[y] of New Mexico [is]
hereby admitted into the Union upon an equal footing
with the original States”).
In respect to the Indian tribes, too, congressional action
Cite as: 579 U. S. ____ (2016) 5
BREYER, J., dissenting
is relevant to the double jeopardy analysis. This Court
has explained that the tribes possess an independent
authority to enact criminal laws by tracing the source of
power back to a time of “ ‘primeval’ ” tribal existence when
“ ‘the tribes were self-governing sovereign political com­
munities.’ ” Ante, at 9–10 (quoting United States v.
Wheeler, 435 U.S. 313, 322–323 (1978)). But as the Court
today recognizes, this prelapsarian independence must be
read in light of congressional action—or, as it were, inac­
tion. That is because—whatever a tribe’s history—
Congress maintains “plenary authority to limit, modify or
eliminate the [tribes’] powers of local self-government,”
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978),
and thus the tribes remain sovereign for purposes of the
Double Jeopardy Clause only “until” Congress chooses to
withdraw that power, ante, at 10. In this sense, Congress’
pattern of inaction (i.e., its choice to refrain from with­
drawing dual sovereignty) amounts to an implicit decision
to grant such sovereignty to the tribes. Is not Congress
then, in this way, the “source” of the Indian tribes’ criminal-
enforcement power?
These examples illustrate the complexity of the question
before us. I do not believe, as the majority seems to be­
lieve, that the double jeopardy question can be answered
simply by tracing Puerto Rico’s current legislative powers
back to Congress’ enactment of Public Law 600 and calling
the Congress that enacted that law the “source” of the
island’s criminal-enforcement authority. That is be­
cause—as with the Philippines, new States, and the In-
dian tribes—congressional activity and other historic cir­
cumstances can combine to establish a new source of
power. We therefore must consider Public Law 600 in the
broader context of Puerto Rico’s history. Only through
that lens can we decide whether the Commonwealth,
between the years 1950 and 1952, gained sufficient sover­
eign authority to become the “source” of power behind its
6 PUERTO RICO v. SANCHEZ VALLE
BREYER, J., dissenting
own criminal laws.
II
The Treaty of Paris, signed with Spain in 1898, said
that “[t]he civil rights and political status” of Puerto Rico’s
“inhabitants . . . shall be determined by the Congress.”
Art. 9, 30 Stat. 1759. In my view, Congress, in enacting
the Puerto Rican Federal Relations Act (i.e., Public Law
600), determined that the “political status” of Puerto Rico
would for double jeopardy purposes subsequently encom­
pass the sovereign authority to enact and enforce—
pursuant to its own powers—its own criminal laws. Sev­
eral considerations support this conclusion.
First, the timing of Public Law 600’s enactment suggests
that Congress intended it to work a significant change in
the nature of Puerto Rico’s political status. Prior to 1950
Puerto Rico was initially subject to the Foraker Act, which
provided the Federal Government with virtually complete
control of the island’s affairs. In 1917 Puerto Rico became
subject to the Jones Act, which provided for United States
citizenship and permitted Puerto Ricans to elect local
legislators but required submission of local laws to Con­
gress for approval. In 1945 the United States, when sign­
ing the United Nations Charter, promised change. It told
the world that it would “develop self-government” in its
Territories. Art. 73(b), 59 Stat. 1048, June 26, 1945, T. S.
No. 993 (U. N. Charter). And contemporary observers
referred to Public Law 600 as taking a significant step in
the direction of change by granting Puerto Rico a special
status carrying with it considerable autonomy. See, e.g.,
Magruder, The Commonwealth Status of Puerto Rico, 15
U. Pitt. L. Rev. 1, 14–16 (1953); see also L. Kalman, Abe
Fortas: A Biography 170–171 (1990) (“[After the 1950
‘compact,’] Puerto Rico was self-ruling, according to [For­
tas], although the federal government retained the same
power it would have over states in a union”).
Cite as: 579 U. S. ____ (2016) 7
BREYER, J., dissenting
Second, Public Law 600 uses language that says or
implies a significant shift in the legitimacy-conferring
source of many local laws. The Act points out that the
United States “has progressively recognized the right of
self-government of the people of Puerto Rico.” 64 Stat.
319. It “[f]ully recogniz[es] the principle of government by
consent.” 48 U.S. C. §731b. It describes itself as being “in
the nature of a compact so that the people of Puerto Rico
may organize a government pursuant to a constitution of
their own adoption.” Ibid. It specifies that the island’s
new constitution must “provide a republican form of gov­
ernment,” §731c; and this Court has characterized that
form of government as including “the right of the people to
choose their own officers for governmental administration,
and pass their own laws in virtue of the legislative power
reposed in representative bodies, whose legitimate acts
may be said to be those of the people themselves,” In re
Duncan, 139 U.S. 449, 461 (1891).
Third, Public Law 600 created a constitution-writing
process that led Puerto Rico to convene a constitutional
convention and to write a constitution that, in assuring
Puerto Rico independent authority to enact many local
laws, specifies that the legitimacy-conferring source of
much local lawmaking shall henceforth be the “people of
Puerto Rico.” The constitution begins by stating:
“We, the people of Puerto Rico, in order to organize
ourselves politically on a fully democratic basis, to
promote the general welfare, and to secure for our­
selves and our posterity the complete enjoyment of
human rights, placing our trust in Almighty God,
do ordain and establish this Constitution for the
commonwealth . . . .
. . . . .
“We understand that the democratic system of gov­
ernment is one in which the will of the people is the
8 PUERTO RICO v. SANCHEZ VALLE
BREYER, J., dissenting
source of public power.” P. R. Const., Preamble
(1952).
The constitution adds that the Commonwealth’s “political
power emanates from the people and shall be exercised in
accordance with their will,” Art. I, §1; that the “govern­
ment of the Commonwealth of Puerto Rico shall be repub­
lican in form and its legislative, judicial and executive
branches . . . shall be equally subordinate to the sovereignty
of the people of Puerto Rico,” Art. I, §2; and that “[a]ll
criminal actions in the courts of the Commonwealth shall
be conducted in the name and by the authority of ‘The
People of Puerto Rico,’ ” Art. VI, §18.
At the same time, the constitutional convention adopted
a resolution stating that Puerto Rico should be known
officially as “ ‘The Commonwealth of Puerto Rico’ ” in
English and “ ‘El Estado Libre Asociado de Puerto Rico’ ” in
Spanish. Resolution 22, in Documents on the Constitu­
tional Relationship of Puerto Rico and the United States
192 (M. Ramirez Lavandero ed., 3d ed. 1988). The resolu­
tion explained that these names signified “a politically
organized community . . . in which political power resides
ultimately in the people, hence a free state, but one which
is at the same time linked to a broader political system in
a federal or other type of association and therefore does
not have independent and separate existence.” Id., at 191.
Fourth, both Puerto Rico and the United States ratified
Puerto Rico’s Constitution. Puerto Rico did so initially
through a referendum held soon after the constitution was
written and then by a second referendum held after the
convention revised the constitution in minor ways (ways
that Congress insisted upon, but which are not relevant
here). See 66 Stat. 327; see also ante, at 3 (describing
these revisions). Congress did so too by enacting further
legislation that said that the “constitution of the Com­
monwealth of Puerto Rico . . . shall become effective when
Cite as: 579 U. S. ____ (2016) 9
BREYER, J., dissenting
the Constitutional Convention of Puerto Rico shall have
declared in a formal resolution its acceptance . . . of the
conditions of approval herein contained.” 66 Stat. 327–
328. And, as I have just said, the convention, having the
last word, made the minor amendments and Puerto Rico
ratified the constitution through a second referendum.
Fifth, all three branches of the Federal Government
subsequently recognized that Public Law 600, the Puerto
Rican Constitution, and related congressional actions
granted Puerto Rico considerable autonomy in local mat­
ters, sometimes akin to that of a State. See, e.g., S. Rep.
No. 1720, 82d Cong., 2d Sess., 6 (1952) (“As regards local
matters, the sphere of action and the methods of govern­
ment bear a resemblance to that of any State of the Un­
ion”). Each branch of the Federal Government subse­
quently took action consistent with that view.
As to the Executive Branch, President Truman wrote to
Congress that the Commonwealth’s constitution, when
enacted and ratified, “vest[s] in the people of Puerto Rico”
complete “authority and responsibility for local self-
government.” Public Papers of the Presidents, Apr. 22,
1952, p. 287 (1952–1953). Similarly, President Kennedy
in 1961 circulated throughout the Executive Branch a
memorandum that said:
“The Commonwealth structure, and its relationship
to the United States which is in the nature of a com­
pact, provide for self-government in respect of internal
affairs and administration, subject only to the appli­
cable provisions of the Federal Constitution, the Puerto
Rican Federal Relations Act [i.e., Public Law 600],
and the acts of Congress authorizing and approving
the constitution.
. . . . .
“All departments, agencies, and officials of the ex­
ecutive branch of the Government should faithfully
10 PUERTO RICO v. SANCHEZ VALLE
BREYER, J., dissenting
and carefully observe and respect this arrangement in
relation to all matters affecting the Commonwealth of
Puerto Rico.” 26 Fed. Reg. 6695.
Subsequent administrations made similar statements.
See Liebowitz, The Application of Federal Law to the
Commonwealth of Puerto Rico, 56 Geo. L. J. 219, 233, n.
60 (1967) (citing message from President Johnson).
The Department of State, acting for the President and
for the Nation, wrote a memorandum to the United Na­
tions explaining that the United States would no longer
submit special reports about the “economic, social, and
educational conditions” in Puerto Rico because Puerto Rico
was no longer a non-self-governing Territory. U. N. Char­
ter, Art. 73(e) (requiring periodic reports concerning such
Territories). Rather, the memorandum explained that
Puerto Rico had achieved “the full measure of self-
government.” Memorandum by the Government of the
United States of America Concerning the Cessation of
Transmission of Information Under Article 73(e) of the
Charter With Regard to the Commonwealth of Puerto
Rico, in A. Fernós-Isern, Original Intent in the Constitu­
tion of Puerto Rico 154 (2d ed. 2002). The memorandum
added that “Congress has agreed that Puerto Rico shall
have, under [its] Constitution, freedom from control or
interference by the Congress in respect to internal gov­
ernment and administration.” Id., at 153.
The United Nations accepted this view of the matter,
the General Assembly noting in a resolution that “the
people of the Commonwealth of Puerto Rico . . . have
achieved a new political status.” Resolution 748 VIII, in
id., at 142. The General Assembly added that “the people
of the Commonwealth of Puerto Rico have been invested
with attributes of political sovereignty which clearly iden­
tify the status of self-government attained by the Puerto
Rican people as that of an autonomous political entity.”
Cite as: 579 U. S. ____ (2016) 11
BREYER, J., dissenting
Ibid.; see also United Nations and Decolonization, Trust
and Non-Self-Governing Territories (1945–1999), online at
http://www.un.org/en/decolonization/nonselfgov.shtml (as
last visited June 3, 2016) (noting that Puerto Rico under­
went a “Change in Status” in 1952, “after which infor­
mation was no longer submitted to the United Nations”
concerning this former “[t]rusteeship”).
The Department of Justice, too, we add, until this case,
argued that Puerto Rico is, for Double Jeopardy Clause
purposes, an independently sovereign source of its crimi­
nal laws. See, e.g., United States v. Lopez Andino, 831
F.2d 1164, 1168 (CA1 1987) (accepting the Government’s
position that “Puerto Rico is to be treated as a state for
purposes of the double jeopardy clause”), cert. denied, 486
U.S. 1034 (1988).
As to the Judicial Branch, this Court has held that
Puerto Rico’s laws are “state statutes” within the terms of
the Three-Judge Court Act. See Calero-Toledo v. Pearson
Yacht Leasing Co., 416 U.S. 663 (1974). In doing so, we
wrote that the 1952 events had led to “significant changes
in Puerto Rico’s governmental structure”; that the Com­
monwealth had been “ ‘organized as a body politic by the
people of Puerto Rico under their own constitution’ ”; and
that these differences distinguish Puerto Rico’s laws from
those of other Territories, which are “ ‘subject to congres­
sional regulation.’ ” Id., at 672–673; see also, e.g., Examin-
ing Bd. of Engineers, Architects and Surveyors v. Flores de
Otero, 426 U.S. 572, 597 (1976) (Congress granted Puerto
Rico “a measure of autonomy comparable to that possessed
by the States”); Rodriguez v. Popular Democratic Party,
457 U.S. 1, 8 (1982) (“Puerto Rico, like a State, is an
autonomous political entity, sovereign over matters not
ruled by the [Federal] Constitution” (internal quotation
marks omitted)).
Finally, as to the Legislative Branch, to my knowledge
since 1950 Congress has never—I repeat, never—vetoed or
12 PUERTO RICO v. SANCHEZ VALLE
BREYER, J., dissenting
modified a local criminal law enacted in Puerto Rico.
Sixth, Puerto Rico’s Supreme Court has consistently
held, over a period of more than 50 years, that Puerto
Rico’s people (and not Congress) are the “source” of Puerto
Rico’s local criminal laws. See, e.g., Pueblo v. Castro
Garcia, 20 P. R. Offic. Trans. 775, 807–808 (1988) (“Puerto
Rico’s . . . criminal laws . . . emanate from a different
source than the federal laws”); R. C. A. Communications,
Inc. v. Government of the Capital, 91 P. R. R. 404, 415
(1964) (transl.) (Puerto Rico’s “governmental powers . . .
flow from itself and from its own authority” and are not
“merely delegated by Congress”); Ramirez de Ferrer v.
Mari Bras, 144 D. P. R. 141, ___, 1997 WL 870836, *4
(Westlaw transl.) (Puerto Rico’s “governmental powers . . .
emanate from the will of the people of Puerto Rico”); see
also Pueblo v. Figueroa, 77 P. R. R. 175, 183 (1954) (find­
ing that it was “impossible to believe that” the Puerto
Rican Constitution is “in legal effect” simply “a Federal
law”); cf. Figueroa v. Puerto Rico, 232 F.2d 615, 620 (CA1
1956) (“[T]he constitution of the Commonwealth is not just
another Organic Act of Congress” “though congressional
approval was necessary to launch it forth”).
Seventh, insofar as Public Law 600 (and related events)
grants Puerto Rico local legislative autonomy, it is particu­
larly likely to have done so in respect to local criminal law.
That is because Puerto Rico’s legal system arises out of,
and reflects, not traditional British common law (which
underlies the criminal law in 49 of our 50 States), but a
tradition stemming from European civil codes and Roman
law. In 1979 Chief Justice Trías Monge wrote for a unan­
imous Puerto Rico Supreme Court that the Common­
wealth’s laws were to be “governed . . . by the civil law
system,” with roots in the Spanish legal tradition, not by
the “common-law principles” inherent in “ ‘American doc­
trines and theories’ ” of the law. Valle v. American Int’l
Ins. Co., 8 P. R. Offic. Trans. 735, 736–738 (1979). Con­
Cite as: 579 U. S. ____ (2016) 13
BREYER, J., dissenting
siderations of knowledge, custom, habit, and convention
argue with special force for autonomy in the area of crimi­
nal law. Cf. Diaz v. Gonzalez, 261 U.S. 102, 105–106
(1923) (Holmes, J., for the Court) (cautioning that federal
courts should not apply “common law conceptions” in
Puerto Rico, because the island “inherit[ed]” and was
“brought up in a different system from that which prevails
here”).
I would add that the practices, actions, statements, and
attitudes just described are highly relevant here, for this
Court has long made clear that, when we face difficult
questions of the Constitution’s structural requirements,
longstanding customs and practices can make a difference.
See NLRB v. Noel Canning, 573 U. S. ___, ___–___ (2014)
(slip op., at 7–8) (“[I]t is equally true that the longstanding
practice of the government can inform our determination
of what the law is” (citation and internal quotation marks
omitted)); see also, e.g., Mistretta v. United States, 488
U.S. 361, 401 (1989); Dames & Moore v. Regan, 453 U.S.
654, 686 (1981); Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 610–611 (1952) (Frankfurter, J., concur­
ring); The Pocket Veto Case, 279 U.S. 655, 689–690 (1929);
Ex parte Grossman, 267 U.S. 87, 118–119 (1925); United
States v. Midwest Oil Co., 236 U.S. 459, 472–474 (1915);
McPherson v. Blacker, 146 U.S. 1, 27 (1892); McCulloch v.
Maryland, 4 Wheat. 316, 401 (1819); Stuart v. Laird, 1
Cranch 299 (1803). Here, longstanding customs, actions,
and attitudes, both in Puerto Rico and on the mainland,
uniformly favor Puerto Rico’s position (i.e., that it is sover­
eign—and has been since 1952—for purposes of the Dou­
ble Jeopardy Clause).
This history of statutes, language, organic acts, tradi­
tions, statements, and other actions, taken by all three
branches of the Federal Government and by Puerto Rico,
convinces me that the United States has entered into a
compact one of the terms of which is that the “source” of
14 PUERTO RICO v. SANCHEZ VALLE
BREYER, J., dissenting
Puerto Rico’s criminal law ceased to be the U. S. Congress
and became Puerto Rico itself, its people, and its constitu­
tion. The evidence of that grant of authority is far stronger
than the evidence of congressional silence that led this
Court to conclude that Indian tribes maintained a similar
sovereign authority. Indeed, it is difficult to see how we
can conclude that the tribes do possess this authority but
Puerto Rico does not. Regardless, for the reasons given, I
would hold for Double Jeopardy Clause purposes that the
criminal law of Puerto Rico and the criminal law of the
Federal Government do not find their legitimacy-
conferring origin in the same “source.”
I respectfully dissent.