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Double jeopardy no hit in Supreme Court review

WASHINGTON ? Double jeopardy may have been a hit movie, but it didn't work as an appeal for an Indian man charged twice for the same crime under both tribal and federal law.

A recent decision by the U.S. Supreme Court not to take the case finally puts to rest seven years of litigation. The denial of certiorari, the writ necessary to take a case to the highest court, upholds an earlier decision by the 9th Circuit Court of Appeals which said that American Indians who commit crimes on tribal land can be prosecuted both by a tribe and the federal government.

The case stemmed from an incident in 1994 in which Michael Enas, a member of the San Carlos Apache Tribe of Arizona, stabbed Joseph Kessay on land under the jurisdiction of the White Mountain Apache, also of Arizona. Kessay is a member of the White Mountain tribe. Enas later pleaded guilty to charges by the White Mountain Apache of assault with a deadly weapon and assault with intent to cause serious bodily injury. He was sentenced to 180 days in jail and fined $1180. Two weeks later, while on work release, he escaped.

During this time a federal grand jury issued charges based on the same stabbing. Enas then challenged the federal court's authority, citing the fact that he had already been prosecuted, convicted and sentenced by the White Mountain Apache. In 1998, a federal district court agreed with Enas and said that the tribe prosecuted him pursuant to power delegated by Congress and not through its inherent power. Therefore, the tribe acted as "the same sovereign as the United States." The Constitutional protection against dual prosecution termed the Double Jeopardy Clause prohibited Enas from being tried in federal court.

However, in 2001, the 9th Circuit Court of Appeals overturned the lower court's decision, finding that the tribe acted through its inherent sovereign powers and not through powers delegated by Congress. The court said that Indian tribes could prosecute a non-member Indian because of their inherent power and not because they were acting as an arm of the federal government, thus making twin prosecutions constitutional. Under current law, dual prosecution is allowed when brought about by separate sovereigns.

"Our answer lies in the distinction between the 'inherent' and 'delegated' power of Indian tribes," wrote the court. "If the tribe was acting pursuant to its inherent power when it prosecuted Enas, then the dual prosecutions were undertaken by separate sovereigns, and were therefore constitutionally permissible."

In 1990, Congress amended the Indian Civil Rights Act of 1968, recognizing inherent tribal authority over tribal members and Indian non-members. The 9th Circuit cited this action, saying it was enough to show such power existed all along. The Supreme Court has recognized three categories of defendants in tribal courts: "members" (of the prosecuting tribe), "non-member Indians" and "non-Indians." Tribes exercise different powers over each class of defendant.

By declining to review the Enas case, the Supreme Court allowed the 9th Circuit ruling to stand as law of the land.