The Honorable Lawrence L. Piersol, United States District

1

Judge for the District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-2854

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of South Dakota.

L.Z., *

*

Appellant. *

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 Submitted: February 11, 1997

 Filed: April 10, 1997

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Before MAGILL, BEAM, and LOKEN, Circuit Judges.

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MAGILL, Circuit Judge.

L.Z., a sixteen-year-old member of the Yankton Sioux Tribe,

was convicted in the 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. contends that his conviction violates the

Double Jeopardy Clause of the Fifth Amendment. We affirm.
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I.

In April and May of 1995, L.Z. committed a series of

burglaries in and around Wagner, South Dakota. L.Z. pled guilty in

South Dakota State Court to state criminal charges arising from the

burglaries. On October 4, 1995, L.Z. was adjudged a delinquent

child and sentenced to confinement 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

held that the Yankton Sioux Reservation had not been diminished.

See Yankton Sioux Tribe v. Southern Mo. Waste Management Dist., 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 the

boundaries of the Yankton Sioux Reservation, and because L.Z. was

an enrolled member of the tribe, 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 Office for the District of South

Dakota brought federal charges against L.Z. for the same burglaries

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

prohibited by the Double Jeopardy Clause because he had been

previously prosecuted for the same conduct in state court. We

disagree.
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Dual prosecutions by dual sovereigns for the same conduct does

not usually constitute double jeopardy; as the United States 
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Supreme Court has stated, "an act denounced as a crime by both

national and state sovereignties is an offense against the peace

and dignity of both and may be punished by each." United States 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 the

instant case. In Bartlett, a member of an Indian tribe was

invalidly convicted in state court for crimes committed on an

Indian reservation. Upon the defendant's release from state

custody, the federal government prosecuted him for the same conduct

that had resulted in his state conviction. In denying the

defendant's double jeopardy claim, we stated that:

It is well settled that a state prosecution is no bar to

a subsequent federal prosecution absent a showing that

one sovereign was acting as merely a tool of the other in

order to avoid the prohibition against double jeopardy.

Id. at 1074 (quotations and citations omitted). See also United

States v. Garner, 32 F.3d 1305, 1310 (8th Cir. 1994) ("It is well

settled that the double jeopardy clause does not bar a federal

prosecution of a defendant who had been prosecuted for the same

acts in state court."), cert. denied, 115 S. Ct. 1366 (1995). Only

in circumstances where a "state prosecution was a sham and a cover

for a federal prosecution, and thereby in essential fact another

federal prosecution," do dual prosecutions by dual sovereigns

constitute double jeopardy. Bartkus v. Illinois, 359 U.S. 121, 124

(1959).

There is no credible evidence that the State of South Dakota

was acting as a mere tool for the federal government when it

prosecuted L.Z. for burglary. Rather, South Dakota was acting on

long-established South Dakota Supreme Court precedent that the
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Yankton Sioux Reservation had been diminished and that the state

had jurisdiction over nontribal lands. See, e.g., State v. 
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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.2d

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 the

United States Constitution does not bar the federal government's

prosecution of L.Z. for the burglaries he committed on the Yankton

Sioux Reservation. Accordingly, the judgment of the district court

is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.