Oral Argument Transcript in Case on Whether the Dual Sovereignty Exception to the Double Jeopardy Clause Should Continue

Worth a read. The federal government’s attorney’s representations about tribal criminal jurisdiction and tribal prerogatives are . . . interesting.

Here is the transcript in Gamble v. United States.

The docket page is here.

The NWIRC and NCAI brief is here: NIWRC Amicus Brief

Ninth Circuit Briefs in U.S. v. Bearcomesout — Federal Defenders Seek End of the Dual Sovereignty Exception for Indian Tribes

Here are the briefs in United States v. Bearcomesout:

Opening Brief

Answer Brief


An excerpt from the opening brief:

Because the Northern Cheyenne Constitution cedes almost unfettered authority to the federal government, Ms. Bearcomesout’s prior conviction in Tribal Court bars subsequent federal prosecution in U.S. District Court as a violation of the Double Jeopardy clause. What is more, the frequency of litigation attacking identical and successive prosecutions says something about the inherent unfairness and counter intuitive legal analysis imposed on what seems to be a simple constitutional prohibition. Perhaps it is time to eschew the ‘separate sovereign’ concept altogether; because the harm it is intended to proscribe is hardly served by current separate sovereigns doctrine. See Puerto Rico v. Sanchez Valle, 579 U.S ___, 136 S.Ct. 1863, 1877 (2016) (Ginsberg, J., concurring).

Montana Supreme Court Reverses Conviction of CSKT Member

Here are the materials in State v. James:

State v James Opinion

James Opening Brief

Montana Brief

James Reply Brief

Interesting double jeopardy case, in that Montana law recognizes tribal court convictions for state double jeopardy purposes.

New Mexico Court of Appeals Holds that Tribal Court Child Custody Case Does Not Preempt State Case

Here is the opinion in State v. Diggs, in which the court rejected a double jeopardy argument. An excerpt:

Defendants Jonathan Diggs and Rebecca Miller appeal in advance of their trial from the district court’s denial of their motions to dismiss on double jeopardy grounds. We consider whether the New Mexico Constitution and double jeopardy statute prohibit the State from prosecuting Defendants for child abuse because the Children, Youth and Families Department (CYFD) previously investigated Defendants for child abuse and the Acoma Pueblo tribal court previously held a custody hearing on the same issues. We hold that there was no double jeopardy violation and affirm.