Walker, Ex Parte Calvin Gary ( 2016 )


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  •                                                                                               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.