Gamble v. United States
In November 2018, NIWRC and the National Congress of American Indians filed an amicus brief in Gamble v. United States. Gamble, who had been convicted by both the State of Alabama and the United States of violating similar firearm laws, challenged his federal conviction in the Supreme Court, asserting that his subsequent federal conviction — because it followed a state conviction — violated his rights under the U.S. Constitution’s Double Jeopardy Clause. The Supreme Court’s precedent on point, however, commands that the “separate sovereign” doctrine applies to duplicate state and federal prosecutions—or duplicate tribal and state/federal prosecutions—such that these duplicative violations for the same crime do not violate the Double Jeopardy Clause. Many were surprised the Supreme Court agreed to hear this case since the “separate sovereign” doctrine has controlled for more than 150 years and the Court had repeatedly declined invitations to overturn it. To be sure, the loss of the “separate sovereign” doctrine could have had significant implications for Native women and children, if the Court had overturned the doctrine entirely. The amicus brief filed by NIWRC and NCAI asserted that overturning the Court’s long-standing precedent regarding the separate sovereign doctrine, which has allowed both tribal and the federal governments to prosecute for violations of their respective criminal laws, would have significant ramifications in Indian country.
The ability of both sovereigns to prosecute has heightened importance for Tribal Nations due to sentencing limitations placed on tribal courts by the federal Indian Civil Rights Act and the well-documented challenges the federal government has investigating and prosecuting inherently local crimes. Changing this rule would have destabilized an already precarious jurisdictional scheme at the expense of victims, particularly those who experience serious domestic violence or sexual violence. That is, the eradication of the “separate sovereigns” doctrine would require a Tribal Nation to choose whether to prosecute a case before the U.S. Attorney has had sufficient time to perform the necessary investigation to determine whether they will prosecute under federal law and sentencing authority. The Tribal Nation could have been forced to move forward with prosecution, and without the “separate sovereigns” exception, such a prosecution would then preclude the more meaningful and deterrent sentencing authorized under federal jurisdiction. And thus, until or unless tribal criminal jurisdiction—and sentencing authority—is fully and completely restored, federal prosecutions will remain an essential tool in preserving the safety of Native women and children in their own homes.
During oral argument, Justice Breyer referred directly to the amicus brief by NIWRC and NCAI, stating “...think of the brief here with the Indian tribes. We’re saying that we need this kind of thing for abuse of women.” In a 7-2 opinion, the Court declined to overturn the dual-sovereignty doctrine.
