When We Talk About Sovereigns, We’re Talking About Sovereignty
Video Transcribed: What are separate sovereigns and what does that mean to you in your criminal case? Hi, my name is Ryan Cannonie, I’m an attorney in Tahlequah with Wirth Law Office, And one thing I have to explain to my clients a lot of times is the concept of separate sovereigns.
Now, when we talk about sovereigns, we’re talking about sovereignty. We’re talking about a government’s inherent ability to govern its people. And if you’re living in Eastern Oklahoma, and you’re living here since, well, last summer, then what you’re really looking at is a federal government, a state government, and tribal governments.
Because now we’ve had decisions on many of the cases, starting with McGirt, but going through several of the other tribes and even more tribes than the Five Tribes. The Five Tribes in Eastern Oklahoma is where this all started. But even more, tribes are starting to look back through their treaties and say, “Hey, wait, we still have a reservation too.” So who knows where this is going to end up being with Oklahoma and reservation status.
But the issue with criminal cases that comes up is, well, first off, the state has no authority if you’re a Native American enrolled in a tribe and the crime or alleged crime occurred on a reservation. It has to either go federal or to the tribe.
But a lot of people get confused by that. They say, “Well, how can…” Let’s say the state hasn’t dismissed your case yet, but the tribe’s already filed the case on you. Said, “Well, how can you have a state court case and a tribal case at the same time?” Well, this whole concept of separate sovereigns.
And what it means is it’s not double jeopardy to be charged twice by two different legal entities like that. And we’re not talking about the difference between Cherokee County’s DA’s office versus Adair County’s DA’s office. We’re talking about the State of Oklahoma, which is its own sovereign entity.
It has rights and powers that even the federal government can’t mess with. Versus the tribes, which are also, they’re under law considered dependent sovereigns, dependent nations, but they do have their own sovereignty. And that means that they have the authority to make laws and govern themselves in ways that the State of Oklahoma and the federal government can’t mess with. And then you have the federal government, which is, of course, you would understand, has the ability to govern and make laws that neither of the rest can mess with.
So you have these three competing governmental bodies. But there’s case law out there, there’s Supreme Court case law, in fact, that says if you’re charged in one, it doesn’t prevent you from being charged in the others. And so that’s why when the state dismisses their case against you because you’re Native American and you filed your motions, you had your attorney file them hopefully, got it all done, and it’s dismissed, why the feds or the tribes may end up filing a case against you.
And the Cherokees, I know for a fact just because I’ve been in court when one of their assistant attorney generals has stood up and said, when the court dismisses the case, they have their documents in hand, saying, “We’ve already filed a case against this person. And now it’ll run through tribal court.” Now, okay, so we get the concept of, “Okay, well, I can be charged in multiple places.” What does that mean for punishment?
Well, because there’s no real overlap there, the punishments can be separate. So if you did 15 years prison, State of Oklahoma, and you’re on ten years… Actually, let’s lower it. 15 years in prison, and you’ve got three years supervised probation and you’re in year two, two years, and seven months. It may be better for you to wait a little bit and get rid of that sentence. And just kind of maybe not jump around in court about them not having the ability to prosecute you.
And why is that? Well, because once it’s dismissed, for certain crimes, that case could still be charged in federal or tribal court. Well, depending on which tribe you’re talking about because the statute of limitations. But definitely in federal court under certain offenses, it could be charged against you.
There are certain offenses in federal court that, for life, you can be looking at a charge. So if you get it dismissed at the state and feds are too busy, Cherokee or whatever tribe you’re dealing with are too busy, then they don’t have to file on it right then. Some of them have a few years. The feds, under certain crimes, have your life that they can charge for you and you don’t get credit for any of the time you spent in Oklahoma’s prison system.
So when you look at separate sovereigns, it’s a kind of weird concept to think about. But the whole point is that you have separate governmental entities that can all charge you with certain crimes, depending on what jurisdiction they have on those crimes. And you can be facing punishment under all of them.
So does that mean that if you had a state court case that now has to go to tribal and to a federal court that the feds can charge you with certain things, the tribes can charge you with certain things, and both send you to prison for a different amount of time? Yes, potentially that could happen.
It’s why it’s good to have an attorney that understands kind of what’s going on. Not only with these reservation decisions, but how that’s going to impact you and give you all the options out front. I talk with lots of clients that want to go ahead and kind of roll the dice and see if they’re going to get re-charged somewhere else because they have so much time ahead of them, it makes more sense for them to just try to do that.
I have other clients who are like, “Well, I need to think about this,” or, I guess, potential clients, “I need to think about this. I may not want to go ahead and retain and do this because I’m going to be looking at so much more time to do in the future.”
For a quick and free consultation with a Tahlequah Criminal Defense Attorney call the Wirth Law Office – Tahlequah.