Document Type
Article
Publication Date
2009
Disciplines
Law
Abstract
The dual sovereignty doctrine reflects the bifurcated structure of the federal system, but it also incorporates individual Indian tribes as unique third sovereigns within that system. Recently, the doctrine's application to the Sixth Amendment right to counsel has split the federal circuit courts and revealed a conflict between adhering to the dual sovereignty principle and protecting the rights of an individual who is subject to simultaneous prosecutions. Yet the standard analysis of this conflict fails to account for the presence of tribal sovereigns and the unique position in which tribal members sit as citizens of tribal polities and the United States. This comment provides a necessary correction to the prevailing views of the conflict. It undertakes a comparative analysis of the state-federal and tribal-federal permutations of the dual sovereignty doctrine. A comparative approach situates the current split among the federal circuit courts in a meaningful context and examines the relational dynamic between tribal and federal courts when interacting with an individual defendant who is subject to prosecution in both.
Publication Title
South Dakota Law Review
Volume
54
First Page
129
Recommended Citation
Alex Hagen, From Formal Separation to Functional Equivalence: Tribal-Federal Dual Sovereignty and the Sixth Amendment Right to Counsel, 54 S.D. L. Rev. 129 (2009)