United States v. Long, Frank

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1473
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
FRANK LONG,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01-CR-102—Lynn Adelman, Judge.
____________
ARGUED SEPTEMBER 6, 2002—DECIDED MARCH 20, 2003
____________
Before POSNER, EASTERBROOK, and DIANE P. WOOD,
Circuit Judges.
DIANE P. WOOD, Circuit Judge. The narrow question
in this case is whether Frank Long, a member of the
Menominee Tribe of Wisconsin, can be prosecuted by the
United States for the same conduct that was the subject
of an earlier tribal prosecution. In order to resolve that
issue, however, we must consider the scope of the sover-
eignty the Menominee Tribe currently enjoys. If the
Menominee prosecution is properly characterized as one
flowing from independent sovereign powers, then there is
no Double Jeopardy bar to the subsequent federal pros-
ecution. If, on the other hand, the Menominee were acting
2 No. 02-1473
solely under powers delegated by Congress, then the first
prosecution will stand as a bar to the second.
This is a difficult question of first impression in a long
line of cases dealing with Indian sovereignty beginning
as early as the days of Chief Justice John Marshall.1 The
district court concluded that because the Tribe’s powers
were first eliminated, and then later restored by act of
Congress, its prosecution of Long was undertaken as an
arm of the federal government. It therefore dismissed
the federal indictment in the present case, relying on the
Fifth Amendment’s Double Jeopardy Clause. We have
come to the opposite conclusion about the source of au-
thority that lay behind the Tribe’s prosecution. In our
view, the Tribe was exercising its own sovereign power,
and thus the dual sovereignty exception to the Double
Jeopardy Clause authorizes the sequential federal and
tribal prosecutions. We therefore reverse the district court’s
decision and remand for further proceedings.
I
In April 2001, defendant Long stole a pick-up truck on
the Menominee Reservation in Keshena, Wisconsin, and
crashed it into a tree. Both Long and the truck’s owner
are members of the Menominee Indian Tribe. Long was
first convicted of theft and malicious mischief in a
Menominee tribal court, which handed down a sentence
of 120 days in tribal jail after he pleaded no-contest to
the theft charge. At the behest of tribal authorities who
were frustrated by Long’s recidivism, a federal grand jury
in the Eastern District of Wisconsin indicted Long for the
1
Throughout this opinion, we use the term “Indian” rather than
“Native American,” reflecting the fact that both tradition, gov-
erning statutes and cases follow that practice.
No. 02-1473 3
same theft. Federal jurisdiction was premised on 18 U.S.C.
§ 1153(a), the Indian Major Crimes Act, which grants
federal jurisdiction over fourteen enumerated crimes, in-
cluding larceny, committed on Indian reservations by
Indians. See also 18 U.S.C. § 661 (federalizing the crime
of larceny within the United States’s territorial jurisdic-
tion).
Long moved to dismiss the federal indictment on double
jeopardy grounds and alternatively asked that the court
abstain from exercising jurisdiction. The magistrate judge
recommended denying both aspects of his motion. The
district court agreed in part, finding that the case did not
warrant the extraordinary step of abstention, but it con-
cluded that the subsequent federal prosecution violated
the Double Jeopardy Clause, and for that reason it dis-
missed the indictment. The government has appealed, as
is its right under 18 U.S.C. § 3731. The abstention ruling
is not before us, as Long has not filed a cross-appeal from
that aspect of the court’s decision. We note, however, that
a federal court generally may not choose to “abstain” from
exercising its jurisdiction in a criminal prosecution.
II
Although the post-colonial story of the Menominee
Indians has been recounted in detail on numerous occa-
sions, we find it useful for purposes of evaluating the
arguments before us to review some of the high points.
See, e.g., Menominee Indian Tribe of Wisconsin v. Thomp-
son, 161 F.3d 449, 452-53 (7th Cir. 1998) (discussing treaty
history between Menominee Tribe and United States
government); Lac Courte Oreilles Band of Superior
Chippewa Indians v. Voigt, 700 F.2d 341, 353-54 (7th Cir.
1983) (historical overview); Sturdevant v. Wilber, 464 F.
Supp. 327, 328 (E.D. Wis. 1979) (discussing termination
and restoration); State v. Webster, 338 N.W.2d 474, 476-77
4 No. 02-1473
(Wis. 1983) (discussing state jurisdiction over Menominee
Tribe and reservation).
The Tribe’s 276,000 acre reservation, located at the mouth
of the Oconto and Wolf rivers in Wisconsin, was created
by the Treaty of Wolf River in 1854. See Menominee Indi-
an Tribe, 161 F.3d at 453; Menominee Tribe of Indians
v. United States, 391 U.S. 404, 405 (1968). The Tribe ex-
isted as a quasi-sovereign entity within the borders of its
Indian reservation for nearly 100 years, during which time
it exercised sovereign powers over internal reservation
affairs. Among other things, the Menominee fully funded
a hospital on the reservation and operated a sustainable
yield logging business. See Patty Loew, Indian Nations
of Wisconsin, 32-34 (2001). See also Felix S. Cohen, Hand-
book of Federal Indian Law, 231-35 (1982) (general discus-
sion of tribal sovereignty over internal affairs). Of central
importance to our case was the existence of a full-blown
Menominee judicial system, which had jurisdiction over
civil and criminal matters. Prior to the late 1800s, when
the Bureau of Indian Affairs (BIA) established a Court
of Indian Offenses on the Menominee Reservation, the
Tribe operated a system of dispute resolution that was
based on ancient practices involving a Peacemaker, or
respected tribal elder. See Stephen M. Tourtillott-Gro-
chowski, Profile, Menominee Tribal Court, in On Common
Ground: A Meeting of State, Federal and Tribal Courts § 2
(Mar. 11-12 1999). The BIA Court of Indian Offenses that
replaced the Menominee dispute resolution system em-
ployed Bureau-appointed judges and magistrates who
applied Bureau-made rules and regulations. Id.
The BIA Court was abolished when jurisdiction over
crimes committed on Menominee lands was transferred
to the state of Wisconsin (discussed in further detail be-
low), but that jurisdiction was restored in 1973 through a
shift in federal law that paved the way for the re-estab-
lishment of the Court of Indian Offenses. That court re-
No. 02-1473 5
mained active until 1979 when the Tribe set up the
Menominee Tribal Court. Tourtillot-Grochowski, supra.
Today, the Menominee Tribal Court is comprised of a Su-
preme Court with three sitting Justices, as well as two
lower courts presided over by two trial judges. Id. The com-
bined system processed nearly 7,000 cases in 1997. Id.
III
Our review of the dismissal of Long’s federal indict-
ment under the Double Jeopardy Clause is de novo. United
States v. Furlett, 974 F.2d 839, 842 (7th Cir. 1992). It is
apparent that this case raises complex questions about
the scope of the Double Jeopardy Clause, tribal sover-
eignty, and Congress’s power to regulate Indian tribes.
Together, these points add up to an interesting question
of first impression for this court, namely, whether succes-
sive prosecutions by an Indian tribal court and the fed-
eral government fall within the dual sovereignty exception
to the Double Jeopardy Clause if the tribal prosecution
is undertaken by a tribe that was the subject of an Act
of Congress terminating federal supervision over the prop-
erty and members of the tribe, and whose powers were
later legislatively restored. The Supreme Court expressly
declined to address this question in United States v.
Wheeler, 435 U.S. 313 (1968), where it issued the follow-
ing disclaimer:
By emphasizing that the Navajo Tribe never lost its
sovereign power to try tribal criminals, we do not
mean to imply that a tribe which was deprived of
that right by Act of Congress would necessarily be
an arm of the Federal Government. That interesting
question is not before us, and we express no opin-
ion thereon.
435 U.S. at 329 n.28. In fact, until this case, this precise
question had not been decided by any court.
6 No. 02-1473
A. The Dual Sovereignty Doctrine
The Fifth Amendment’s Double Jeopardy Clause states
that “[n]o person shall . . . be subject for the same offence to
be twice put in jeopardy of life or limb.” U.S. Const. amend.
V. The Supreme Court has interpreted the clause as
prohibiting not only multiple punishments for the same
crime, but also multiple prosecutions as well. See United
States v. Dixon, 509 U.S. 688, 695-96 (1993). One signifi-
cant limitation exists, however, to the protection afforded
by the Double Jeopardy Clause. It is known as the dual
sovereignty doctrine, under which courts recognize that
the Clause is no bar to serial prosecution and punish-
ment undertaken by separate sovereign entities. Heath
v. Alabama, 474 U.S. 82, 88 (1985). As the Supreme Court
in Heath explained,
[T]he dual sovereignty doctrine is founded on the
common-law conception of crime as an offense against
the sovereignty of the government. When a defen-
dant in a single act violates the “peace and dignity” of
two sovereigns by breaking the laws of each, he has
committed two distinct “offences.”
Id. at 88.
In analyzing whether sequential prosecutions are under-
taken by separate sovereign bodies, courts must deter-
mine whether the prosecuting “entities draw their author-
ity to punish the offender from distinct sources of power.”
Id. A classic application of the dual sovereignty doctrine
is the case of successive prosecutions by a state and the
federal government. In United States v. Lanza, 260 U.S.
377 (1922), the Supreme Court concluded that separate
prosecutions under the National Prohibition Act and
state law did not violate the Double Jeopardy Clause
because the federal government’s power to regulate in-
toxicating liquors was derived from the Eighteenth Amend-
ment whereas the state’s regulatory power was among
No. 02-1473 7
those powers reserved to the states by the Tenth Amend-
ment. Id. at 382.
Prosecutions by Indian tribes and the federal govern-
ment are prosecutions by separate sovereigns for pur-
poses of the Double Jeopardy Clause. See Wheeler, 435
U.S. at 328. The Court’s decision in Wheeler reaffirmed
the dual sovereignty doctrine and its applicability to Indi-
an tribes. The Court reasoned that a tribe’s power to
prosecute Indian offenders for crimes committed on tribal
lands was not derived from the federal government, be-
cause such powers were not among the sovereign pow-
ers that the tribes lost when they initially submitted to
the United States’s jurisdiction. Id. at 326.
The unresolved question in this case is whether the
dual sovereignty exception to the Double Jeopardy Clause
applies to those Indian tribes that were first “terminated”
and then “restored” by act of Congress. (Put otherwise, the
question is what was “terminated”—certain powers of the
tribe, or the sovereign existence of the tribe itself.) If
the restored tribes continue to exercise criminal jurisdic-
tion over tribal lands as a function of the inherent sover-
eign powers that they retained even after formally sub-
mitting to the United States’s ultimate sovereignty, then
the dual sovereignty doctrine insulates tribal prosecu-
tions and subsequent federal prosecutions (and vice versa)
from double jeopardy challenges. If, however, congres-
sional termination indeed cut off the Indian tribes’ inher-
ent sovereign powers then the question becomes whether
restoration by act of Congress also restores the tribes’
inherent sovereign powers or merely exercises a delega-
tion of federal power to pursue criminal prosecutions to
the tribes. If the latter view is correct, then sequential
tribal and federal prosecutions both represent an exercise
of the same sovereign’s power, and thus would violate
the Double Jeopardy Clause.
8 No. 02-1473
B. The Tribal Sovereignty Doctrine
The Supreme Court has long recognized that Indian
tribes occupy a unique place in the American system of
government. See Cherokee Nation v. Georgia, 30 U.S. (5
Pet.) 1, 17 (1831). Although at one time they may have
had the status of independent nations, they lost their
full independence by virtue of their conquest first by
European and then by American colonizers—a loss that
was later ratified by treaties. Indian tribes are nonethe-
less viewed as quasi-independent or domestic dependent
nations within the United States. Id.
As the Court’s partner in setting the boundaries of
retained tribal authority, Congress enjoys plenary powers
over Indian affairs. See Winton v. Ames, 255 U.S. 373, 393
(1921). Congress derives this power “both explicitly and
implicitly from the Constitution itself.” Morton v. Man-
cari, 417 U.S. 535, 551-52 (1974). Courts have attributed
Congress’s plenary powers over Indian relations to the
Indian Commerce Clause, which grants Congress the pow-
er to “regulate Commerce . . . with the Indian Tribes,” see,
e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163,
192 (1989) (“[T]he central function of the Indian Commerce
Clause is to provide Congress with plenary power to
legislate in the field of Indian affairs.”), and to Con-
gress’s protectorate or trust relationship with the Indian
tribes, see United States v. Kagama, 118 U.S. 375, 383-84
(1886). Others have claimed that these plenary powers
exist by virtue of conquest. See Judith Resnick, Depen-
dent Sovereigns: Indian Tribes, States, and the Federal
Courts, 56 U. Chi. L. Rev. 671, 692 (1989). Either way, it
is clear that Indian tribes retain the powers of a sover-
eign nation in the limited realm of internal affairs, subject
to Congress’s power completely to divest the tribes of
such sovereignty. See California v. Cabazon Band of
Mission Indians, 480 U.S. 202, 207 (1987); Smart v.
State Farm Ins. Co., 686 F.2d 929, 932 (7th Cir. 1989).
No. 02-1473 9
Indian tribes’ retained sovereignty over internal affairs
is justified in light of the tribes’ legitimate interest in
“control[ling] their own internal relations, and [ ] pre-
serv[ing] their own unique custom and social order.” Duro
v. Reina, 495 U.S. 676, 686 (1990). Such powers were
not necessarily destroyed when the Indian tribes submit-
ted to the jurisdiction of the United States. Id. The pow-
er to make and enforce criminal laws has been recog-
nized as an exercise of the inherent sovereign powers re-
tained by Indian tribes because the exercise of criminal
jurisdiction over tribe members on tribal lands “involve[s]
only the relations among members of a tribe [and these]
are not such powers as would necessarily be lost by vir-
tue of a tribe’s dependent status.” Wheeler, 435 U.S. at 326.
C. The Sovereign Powers of the Menominee Tribe
Central to the Supreme Court’s reasoning in Wheeler is
the distinction between sovereign powers that Indian
tribes retain despite their conquest by the United States
and those powers that are delegated to the tribes by act
of Congress. Id. The source of the Tribe’s powers here is
debatable because of a series of congressional acts that
altered the Menominee’s status as an Indian tribe. Three
statutes are relevant: Public Law 280, codified in part at
18 U.S.C. § 1162; the Menominee Termination Act, 25
U.S.C. §§ 891-902; and the Menominee Restoration Act, 25
U.S.C. §§ 903-903f.
In August 1953, in response to perceived lawlessness
on Indian reservations, the United States Congress en-
acted Public Law 280, 67 Stat. 588 (1953), codified in part
at 18 U.S.C. § 1162, which gave six states (Alaska, Califor-
nia, Minnesota, Nebraska, Oregon and Wisconsin) juris-
diction to prosecute “crimes committed by or against
Indians in Indian country.” Webster, 338 N.W.2d at 476; see
also 18 U.S.C. § 1162 (“[T]he criminal laws of such state
10 No. 02-1473
or territory shall have the same force and effect within
such Indian country as they have elsewhere within the
State or Territory.”). While Wisconsin was among the
states initially covered by Public Law 280, the original
statute specifically exempted the Menominee Tribe,
which lobbied for this exception because it claimed to
have an effective tribal system of justice in place at
the time. Menominee Tribe of Indians, 391 U.S. at 411 n.11.
Just one year later, pursuant to a federal policy of
assimilation that existed at the time, Congress enacted
the Menominee Termination Act, Pub. L. No. 399, 68
Stat. 250, codified at 25 U.S.C. §§ 891-902 (1953). The
Menominee Termination Act aimed to “provide for the
orderly termination of Federal supervision over the prop-
erty and members of the Menominee Indian Tribe of Wis-
consin.” Menominee Tribe of Indians, 391 U.S. at 408.
As defined by the Act, termination meant that
[A]ll statutes of the United States which affect Indi-
ans because of their status as Indians shall no longer
be applicable to the members of the tribe, and the
laws of the several States shall apply to the tribe and
its members in the same manner as they apply to other
citizens or persons within their jurisdiction.
Pyatskowit v. Montour, 240 N.W.2d 186, 186-87 (Wis. 1976).
The question here, as we said, is whether this statute
simply terminated the external indicia of tribal status for
the Menominee, or whether it permanently changed the
Tribe’s inherent sovereign powers.
In Menominee Tribe of Indians v. United States, the
Supreme Court explained that the Termination Act caused
the federal government to cede to the State of Wiscon-
sin “its power of supervision over the tribe and the reser-
vation lands.” 391 U.S. at 412. The Court declined to
read into the statutory language an abrogation of the
Menominee Indians’ hunting and fishing rights that were
No. 02-1473 11
protected by treaty because the Termination Act spoke
only of “the orderly termination of Federal supervision
over the property and members of the tribe.” Id. at 412-13.
Similarly, the Supreme Court of Wisconsin in State v.
Webster, held that the Menominee Termination Act did
not extinguish the Tribe’s property interest in reserva-
tion lands over which a right-of-way had been granted
to the state. 338 N.W. 2d at 480. Explaining that the Act
restored to the Menominee Tribe “ownership of its tribal
lands” while at the same time subjecting the Tribe “to
the state’s criminal and civil jurisdiction,” id. at 477, the
Wisconsin Supreme Court necessarily contemplated the
continued existence of the Menominee Tribe as a quasi-
sovereign entity (with title to its tribal lands) post-“termina-
tion.” Id.
Indeed, the survival of the Menominee Tribe in some
sovereign capacity after the Termination Act is an un-
controversial proposition. As the United States Court of
Claims explained: “The Termination Act did not abolish
the tribe or its membership. It merely terminated Fed-
eral supervision over and responsibility for the property
and members of the tribe. The Menominee Indians con-
tinue to constitute a tribe.” Menominee Tribe of Indians
v. United States, 388 F.2d 998, 1000 (Ct. Cl. 1967) (em-
phasis added).
Two months after the Termination Act was enacted,
Congress amended Public Law 280 to extend the State
of Wisconsin’s jurisdiction to cover crimes committed by
or against Indians on the Menominee Reservation. See
Webster, 338 N.W.2d at 476; see also 18 U.S.C. § 1162(a)
(codifying Pub. L. No. 661, 68 Stat. 795 (1954)). Even if
the Menominee Termination Act did not divest the Tribe
of its inherent sovereign powers in every regard, together
with Public Law 280 (as amended), Congress withdrew
Menominee jurisdiction over reservation crimes. 18 U.S.C.
§ 1162. This spelled the end of the responsibilities of the
12 No. 02-1473
BIA Court of Indian Offenses for the Menominee Reser-
vation; jurisdiction over all matters was transferred to the
Wisconsin state court system. See Tourtillot-Grochowski,
supra.
The policy of “termination” was not to be the last word
in federal-tribal relations, however. In 1973, Congress
reversed course again when it enacted the Menominee
Restoration Act, 25 U.S.C. §§ 903-903f, which repealed the
Menominee Termination Act. See Latender v. Israel, 584
F.2d 817, 820 (7th Cir. 1978). The Menominee Restora-
tion Act repudiated the federal policy of assimilation
and restored the Tribe’s pre-“termination” rights.
While Public Law 280 was never repealed, the State
of Wisconsin, consistent with Congress’s later intent as
expressed by the Menominee Restoration Act (and after
Tribe lobbying), retroceded its criminal jurisdiction over
the Menominee Reservation back to the federal govern-
ment on March 1, 1976; the federal government from that
point forward exercised concurrent jurisdiction with the
Menominee over the crimes covered by the Major Crimes
Act. See Latender, 584 F.2d at 818. See also Lowe, supra,
Indian Nations of Wisconsin at 38 (Menominee Reser-
vation is the only Wisconsin Indian Reservation over
which the state retroceded its criminal jurisdiction.). The
Menominee Restoration Act, for its part, makes clear
that Congress intended to eliminate termination as a policy
and practice and to restore the Menominee Tribe to its pre-
“termination” status. 25 U.S.C. § 903a(b) (“[T]here are here-
by reinstated all rights and privileges of the tribe or its
members under Federal treaty, statute, or otherwise.”).
Courts have construed the Restoration Act to effect a
full restoration of the Menominee Tribe’s pre-Termina-
tion Act powers. For example, in Barker v. Menominee
Nation Casino, 897 F. Supp. 389, 394 (E.D. Wis. 1997), a
post-restoration case, the district court found “no evidence
No. 02-1473 13
in the record that the Tribe has waived its sovereign
immunity” in a suit brought by a former employee of a
Menominee casino. If the Tribe’s sovereign immunity
remained intact post-restoration (and we have no quarrel
with that conclusion), then we can think of no reason
why the Tribe’s criminal jurisdiction should not as well.
See also Webster, 338 N.W.2d at 480. But our concern
here goes beyond whether Congress successfully restored
the Menominee Tribe’s criminal jurisdiction. It is clear
that it did. For purposes of the dual sovereignty excep-
tion, we must also be satisfied that Congress did so not
by delegating federal power to exercise criminal juris-
diction to the Tribe (assuming that such a delegation to
a different entity would be possible), but instead by re-
storing the Tribe’s own sovereign powers, which pre-dated
the Termination Act, to exercise criminal jurisdiction.
The fact that the Restoration Act uses the word “rein-
stated” to describe the congressional action is one piece
of evidence in favor of the “restoration” reading and against
the “delegation” reading. Congress had not delegated any
power to the Tribe before the Termination Act, and thus
there was nothing from Congress that could have been
reinstated. History also supports the conclusion that the
Menominee Tribe’s criminal jurisdiction over certain
reservation crimes existed before and exists again as a
function of the Tribe’s inherent sovereign powers. This
case does not involve a people unknown to history be-
fore Congress intervened. The Menominee Tribe inhabited
the state of Wisconsin long before European explorers
reached North American shores. In fact, the Menominee
“are the oldest known continuous residents in Wisconsin.”
Nancy Oestreich Lurie, Wisconsin Indians 10 (2002). Their
history is rich and their retained sovereign rights—though
admittedly held at the sufferance of Congress—cannot
be disregarded. The most reasonable reading of the Res-
toration Act is as an effort by Congress to place the
14 No. 02-1473
Menominee back in the position they held before the
Termination Act. Any other result would place the
Menominee on different footing than those tribes newly
recognized by Congress, as well as those tribes that by
chance were spared the termination experiment. (There
are currently about 550 federally recognized Indian
tribes. Approximately 110 tribes and bands were termi-
nated in various acts by Congress. See Michael C. Walch,
Note, 35 Stan. L. Rev. 1181, 1186 (1983).) We see no
sense to such a distinction. And while we assume that
Congress neither can nor would confer the status of a
tribe onto a random group of people, we have no doubt
about congressional power to recognize an ancient group
of people for what they are.
It is worth noting that our case does not involve the
same question that was before the Ninth Circuit in
United States v. Enas, 255 F.3d 662 (9th Cir. 2001) (en
banc) and the Eighth Circuit in United States v. Weasel-
head, 156 F.3d 818 (8th Cir.), vacated by equally divided
court, 165 F.3d 1209 (8th Cir. 1998) (en banc). In Enas
and Weaselhead, the issue was whether Congress could
create inherent sovereign powers that the Supreme Court
had earlier concluded Indian tribes did not possess. The
Ninth Circuit concluded that it was within Congress’s
powers to do so, 225 F.3d at 675, while the Eighth Circuit
split evenly on this question. 165 F.3d 1209. Our case
does not involve creation of any new “inherent” rights. In
the Menominee Restoration Act, Congress merely sought
to restore to the Menominee that which it had taken from
the Tribe earlier.
Our conclusion that Congress had the power to undo by
legislation that which it had accomplished by legisla-
tion—restoring to the Menominee the inherent sovereign
power that it took from them in 1954—is consistent
with the general rule about congressional power. The
Supreme Court has long recognized that “the will of a
No. 02-1473 15
particular Congress . . . does not impose itself upon those
to follow in succeeding years.” Reichelderfer v. Quinn, 287
U.S. 315, 318 (1932), citing Newton v. Mahoning County
Comm’rs, 100 U.S. 548, 559 (1879), and Connecticut
Mut. Life Ins. Co. v. Spratley, 172 U.S. 602, 621 (1899).
Contracts with the government or acts creating vested
rights in private parties raise different concerns, see
United States v. Winstar Corp., 518 U.S. 839, 871, 876
(1996), but we do not have that type of legislation before
us. The text of the Menominee Restoration Act shows
that the later Congress was exercising its legislative
prerogative to undo the effects of the earlier Termina-
tion Act. This is somewhat like what Congress does when
it exercises its power to confer jurisdiction on the lower
federal courts. Congress’s plenary power over the lower
federal courts under Article III, § 1 of the Constitution is
comparable to its plenary power over Indian affairs. As
the Supreme Court explained: “That body [Congress]
may give, withhold or restrict such jurisdiction at its
discretion, provided it be not extended beyond the bound-
aries fixed by the Constitution.” Kline v. Burke Constr. Co.,
260 U.S. 226, 234 (1922) (discussing the Anti-Injunc-
tion Act). Just as Congress can create, deny or limit the
jurisdiction of the lower federal courts, so too can it termi-
nate various indicia of Indian sovereignty, and then later
restore those powers, without affecting the fundamen-
tal existence of the tribe.
Finally, there are strong policy considerations in sup-
port of our conclusion. As the Menominee Tribe argued in
its amicus curiae brief to this court, federal and tribal law
enforcement officials often pursue different objectives
when prosecuting Menominee offenders. Vandalizing a
burial site is one example where federal and tribal objec-
tives likely diverge; for the Tribe, this is a serious of-
fense implicating religious and cultural concerns that
federal prosecutors do not share. By applying the dual
16 No. 02-1473
sovereignty exception, the Tribe is free to vindicate its
unique law enforcement objectives without implicating
the Double Jeopardy Clause. Likewise, the federal gov-
ernment is legitimately concerned with prosecuting tribal
offenders for serious reservation crimes, in part because
tribal punishments are limited by the Indian Civil Rights
Act, 25 U.S.C. § 1302(7), which prevents Indian tribes
from imposing penalties in excess of $5,000 or one year
imprisonment. If the dual sovereignty exception does
not apply, Menominee authorities must wait for federal
prosecutors to act against the most egregious reservation
offenders because any initial tribal prosecution would
prevent subsequent federal prosecution and automatically
cap the punishment to that allowed by the Indian Civil
Rights Act. Neither tribal nor federal law enforcement
objectives should be frustrated in this way.
IV
For the foregoing reasons, the judgment of the district
court is REVERSED and the case is REMANDED for rein-
statement of the federal indictment and further proceed-
ings consistent with this opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-20-03