United States v. Killeaney — Sixth Amendment and the Dual Sovereignty Doctrine — A Circuit Split involving Tribal Law Enforcement & Tribal Courts?

The District Court for the District of South Dakota recently declined to suppress evidence obtained in a criminal investigation at the Rosebud. This case has the potential to go to the Supreme Court (a circuit split already exists and another could arise) and could be a significant problem for tribal criminal law enforcement.

The defendant allegedly committed a crime on tribal lands, initially investigated by the tribal police and prosecuted in tribal court. The defendant made statements to police while being represented by a tribal public defender, who was not a lawyer or a law school graduate (however, the director of the tribal public defender office is a lawyer). The US would like to use those statements in the federal prosecution of the same offense. The question is when the defendant’s Miranda and the Sixth Amendment right to counsel attaches. If the CA8 reverses this decision and holds that they attach at the tribal court level, then there will be two circuit splits.

The question over which a few circuits are already split is this: Whether the dual sovereignty exception applies to the Sixth Amendment. For example, in a case where the underlying facts amount to a crime under both federal and state law, one sovereign (federal or state) will begin investigation and prosecution independent of the other. Three federal circuits (CA1, CA5, and CA4) hold that the Dual Sovereign exception applies and the Sixth Amendment right to counsel does not attach until a federal prosecution begins. Two others disagree (CA2 and CA8). The CA8 case (United States v. Red Bird) is actually a case originating with a tribal court conviction (Rosebud, again).

In this case, the tribal cops began an investigation and then the tribal prosecutor began a prosecution. Eighth Circuit precedent (Red Bird) holds that the Sixth Amendment right to counsel is can be triggered by a tribal court prosecution where the defendant was represented by a lawyer in tribal court if required by tribal law — and the tribal prosecution was concurrent and involved significant cooperation with the federal prosecution. In general, however, courts hold that tribal court prosecutions do not trigger the Sixth Amendment because there usually is no tribal right to counsel (plus, the dual sovereignty exception applies).

So, likely the CA8 will be confronted with the question raised in this case; namely, whether the tribal court prosecution will trigger the Sixth Amendment right to counsel. The DCT here decided that it did not (despite Red Bird) because Red Bird incorrectly interpreted Rosebud tribal law to mean that there was a tribal constitutional right to counsel (according to tribal statute, there isn’t, but the tribal constitution could be read to mean there is — uggh!). The CA8 has already held that the Dual Sovereignty exception doesn’t apply (part of the Sixth Amendment circuit split), and if it extends its analysis to tribal courts (reversing the DCT here), it will be in further conflict with the CA9 (which has held twice that tribal court prosecutions do not trigger the Sixth Amendment rights).

A double circuit split all but cries for Supreme Court review — and frankly the outcome could put a big dent in United States v. Lara and United States v. Wheeler.

We’ll have to carefully watch this one.

Here are the materials:

Defendant’s Motion to Suppress

Government’s Response

Magistrate R&R Denying Motion

Defendant’s Objection to R&R

DCT Order Denying Motion

One thought on “United States v. Killeaney — Sixth Amendment and the Dual Sovereignty Doctrine — A Circuit Split involving Tribal Law Enforcement & Tribal Courts?

Comments are closed.