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Indian Country Criminal Justice, the Dual-Sovereignty Doctrine, and Best Practices for Curbing Multiple Prosecutions

  • Author(s): Thompson, Sarah Glenn
  • Advisor(s): Riley, Angela R
  • et al.
Abstract

The dual-sovereignty doctrine is a significant carve-out to the Fifth Amendment’s Double Jeopardy Clause, allowing individuals to be criminally prosecuted twice for the same alleged conduct, as long as those prosecutions are conducted by different sovereigns. There is much scholarship on the doctrine, most of it critical. The vast majority of this scholarship examines the doctrine’s application in the state-federal context, devoting little attention to its role in the tribal-federal context. Nor is there substantial data on the doctrine’s application in the tribal-federal context. This thesis takes an initial step in filling this knowledge gap. It analyzes how the dual-sovereignty doctrine interacts with the unique framework of criminal law in Indian country, illuminating tribal sovereignty concerns and issues of fairness for defendants that the doctrine creates or exacerbates in the tribal-federal context. It also lays the groundwork for further study of the doctrine’s application in the tribal-federal context, with an eye toward identifying when, why, and with what frequency dual tribal and federal prosecutions arise, as well as the best practices tribal justice systems may already be using that mitigate potential tribal sovereignty concerns and fairness issues.

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