From Formal Separation to Functional Equivalence: Tribal-Federal Dual Sovereignty and the Sixth Amendment Right to Counsel (2009)

I. INTRODUCTION The Fifth Amendment's double jeopardy clause prohibits successive prosecutions of a defendant for the same offense. (1) Under the dual sovereignty doctrine, separate sovereigns may independently pursue prosecutions of what otherwise would be the same offense. (2) The dual sovereignty doctrine rests on the principle that an act criminalized by separate sovereigns may be punished by each. (3) Thus, the dual sovereignty doctrine, as a fundamental precept of federalism, maintains separation between the states and the federal government. (4) The doctrine, however, does more than merely advance the values of federalism: it recognizes individual states, Indian tribes, and the federal government as separate and distinct sovereigns. (5) Accordingly, it speaks to the problematic issue of how tribal sovereigns fit within the original structure of the Constitution and helps flesh out the government-to-government relations among the three sovereigns. (6) The dual sovereignty doctrine postulates separate spheres of authority in which each sovereign may punish violations of its substantive criminal law. (7) The line separating prosecutions by different sovereigns blurs considerably when the prosecutions of a single defendant are not chronologically discrete, but simultaneous and overlapping. (8) Due process rights, such as the Sixth Amendment right to counsel, are tied to specific stages of the criminal process; the rights available to someone suspected of a crime are distinct from those made available to someone who has been formally accused. (9) Thus, an individual may be suspected of an offense in one sovereign's investigation after having been formally accused of what would otherwise be the same offense by another sovereign. (10) Whether the dual sovereignty doctrine applies to the constitutional restraints that govern when and how each sovereign interacts with an individual in this unique situation remains unclear. (11) Of the five federal circuit courts that have considered this issue with respect to the Sixth Amendment right to counsel, three have held that the dual sovereignty doctrine applies; (12) two have held that it does not. (13) Although the dual sovereignty doctrine has been the subject of controversy for some time, (14) the recent split among the United States Courts of Appeals amplifies the doctrine's significance and has prompted prescriptive assessments of the role it should play in Sixth Amendment jurisprudence. (15) These attempts to understand and mediate the split among the federal circuit courts have failed to consider the extent to which the analysis changes depending on which sovereigns are involved. (16) This is surprising, given that the state federal permutation of the dual sovereignty doctrine is remarkably different than the tribal-federal permutation. (17) Indeed, the relationship between the United States and Indian tribes is unique, with little analogical or structural comparison to the state-federal relationship. (18) As distinct sovereigns, pre-existing the Constitution, tribes were not encompassed within the legal, political, or cultural orbit of the United States in the early years of the republic. (19) Furthermore, tribes are not bound by the Sixth Amendment right to counsel, but rather by due process rights that Congress established under the Indian Civil Rights Act of 1968. (20) States and tribes thus stand in a different structural relation to the federal government and their courts apply different procedural safeguards during criminal prosecutions. (21) This comment will show how failure to understand these differences leads to an impoverished understanding of the split among the federal circuits and prevents a realistic assessment of important issues unique to successive tribal and federal prosecutions. (22) Part II provides an overview of the state-federal permutation, focusing on the origins of the dual sovereignty doctrine and changes wrought by the selective incorporation of the Bill of Rights to the states. …