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The Indian tribes have not given up their full sovereignty. Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory. They are a good deal more than "private, voluntary organizations." The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.
A Navajo Tribe member was sentenced for up to 75 days in jail by a tribal court for disorderly conduct, Navajo Nation tit. 17, § 351 (1969), and for contributing to the delinquency of a minor, 17, Navajo Nation tit. 17, § 321 (1969). In connection with the same incident, he was later charged in a federal court with the statutory rape of a 15-year-old girl under 18 U.S.C.S. §§ 1153 and 2032, for which he faced up to 15 years in prison. The district court, rejecting the argument that there was no identity of sovereigns between the Navajo Tribal Courts and the U.S. courts, dismissed the indictment. The appellate court affirmed.
Do Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status?
The Court reversed, holding that the source of the power to punish tribal offenders was the inherent power of a limited sovereignty that had never been extinguished, not a delegation to the tribe of federal authority. Thus, when the Navajo Tribe criminally punished a member, it acted as an independent sovereign, not as an arm of the federal government. Therefore, where tribal and federal prosecutions were brought by separate sovereigns, they were not "for the same offence," and the Double Jeopardy Clause did not bar the federal prosecution.