The Honorable Lawrence L. Piersol, United States Distric t 1 Judge for the District of South Dakota. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2854

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota. L.Z., * * Appellant. *

___________ Submitted: February 11, 1997 Filed: April 10, 1997

___________ Before MAGILL, BEAM, and LOKEN, Circuit Judges.

___________ MAGILL, Circuit Judge. L.Z., a sixteen-year-old member of the Yankton Sioux Tribe , was convicted in t he district court of two counts of third degree 1 burglary on an Indian reservation, in violation of 18 U.S.C. § 1153 (1994). On appeal, L.Z. conte nds that his conviction violates the Double Jeopardy Clause of the Fifth Amendment. We affirm.-2--3- I.
InApril and May of 1995, L.Z. committed a series o f burglaries in and around Wagner, South Dakota. L.Z. pled gu ilty in South Dakota State Court to state criminal charges arising f rom the burglaries. On October 4, 1995, L.Z. was adjudged a delinquen t child and sentenced to confine ment in a juvenile facility until he turned twenty-one years of age. Following L.Z.'s conviction in the South Dakota state court, the United States District Court for the District of South Dakota hel dthat the Yankton Sioux Reservation had not been diminished . See Yankton Sioux Tribe v. Southern Mo. Waste Management Dis t. , 890 F. Supp. 878 (D.S.D. 1995), aff'd , 99 F.3d 1439 (8th Cir. 1996) . Because all of L.Z.'s burglaries had been committed within th e boundaries of the Yankton Sioux Reservation, and because L.Z. was an enrolled member of the trib e, the South Dakota state conviction was invalid. L.Z. was accordingly released from state custody on April 23, 1996, after having served seven months. The United States Attorney's O ffice for the District of South Dakota brought federal charges against L.Z. for the same bur glaries that he had been convicted of in state court. L.Z. entered a guilty plea conditioned on his right to bring this appeal and was sentenced to twenty months imprisonment.
II. L.Z. argues on appeal that his prosecution in federal court is prohib ited by the Double Jeopardy Clause because he had bee n previouslyprosecuted for the same conduct in state court. W e disagree.-4-

Dual prosecutions by dual sovereigns for the same conduct do es not usually constitute double jeopardy; as the United States-5-

Su preme Court has stated, "an act denounced as a crime by bot h nat ional and state sovereignties is an offense against the peac e and dignity of both and may be punished by each." United St ates v. Lanza , 260 U.S. 377, 382 (1922).
In United States v. Bartlett , 856 F.2d 1071 (8th Cir. 1988), we confronted a virtually identical situation as exists in th e inst ant case. In Bartlett , a member of an Indian tribe wa s inv alidlyconvicted in state court for crimes committed on a n Indian reservation. Upon the defendant's release from stat e custody, the federal government prosecuted him for the same conduct that had resulted in his state conviction. In denying th e defendant's double jeopardy claim, we stated that: It is well settled that a stat e prosecution is no bar to a subsequent federal prosecution absent a showing tha t one sovereign was acting as merely a tool of the other i n order to avoid the prohibition against double jeopardy. Id. at 1074 (quotations and citations omitted). See also Unite d States v. Garner , 32 F.3d 1305, 1310 (8th Cir. 1994) ("It is well settledthat the double jeopardy clause does not bar a federa l prosecutionof a defendant who had been prosecuted for the sam e acts in state court."), cert. denied , 115 S. Ct. 1366 (1995) . Only in circumstances where a "stat e prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact anothe r federal prosecution," do dual prosecutions by dual sovereign s constitute double jeopardy. Bartkus v. Illinois , 359 U.S. 1 21, 124 (1959). There is no credible evidence that the State of South Dakota was act ing as a mere tool for the federal government when i t prosecuted L.Z. for burglary. Rather, South Dakota was acting on long-e stablishedSouth Dakota Supreme Court precedent that th e-6-

Yan ktonSioux Reservation had been diminished and that the stat e had jurisdiction over nontribal lands. See, e.g. , State v.-7-

Thompson , 355 N.W.2d 349, 351 (S.D. 1984); State v. Winckler , 260 N.W.2d 356, 360-61 (S.D. 1977); State v. Williamson , 211 N.W.2 d 182, 183-84 (S.D. 1973); Wood v. Jameson , 130 N.W.2d 95, 99 (S.D. 1964). That South Dakota did not, in fact, have jurisdiction over L.Z.'s crimes does not render its efforts to prosecute him a "sham." The Double Jeopardy Clause of the Fifth Amendment to th e United States Constitution does not bar the federal government' s prosecution of L.Z. for the bu rglaries he committed on the Yankton Sioux Reservation. Accordingly, the judgment of the distric t court is affirmed. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.