Settle the question of double jeopardy
Re: “Arsonist banished by First Nation argues against jail sentence,” Feb. 25.
As is often the case, courts in the United States have already decided the issue of whether being convicted and sentenced by a tribal court and a U.S. federal court for the same illegal act amounts to double jeopardy.
In 1978 the U.S. Supreme Court ruled that the proceedings in both courts were valid and there was no double jeopardy.
The reason? Tribal government in the U.S. is based upon inherent powers of a limited sovereignty that has never been extinguished, which means that the tribal prosecution and the federal prosecution were brought by separate sovereigns.
So, just as a federal prosecution does not bar a subsequent state prosecution of the same person for the same act (and vice versa), a tribal prosecution does not bar a subsequent federal one.
The prosecutions are brought and the punishment is imposed by different sovereigns for different offences.
In Canada, therefore, the result might depend upon whether tribal governments have the sort of limited sovereignty long recognized in the U.S.
If tribal governments here do enjoy this sort of sovereignty — which seems likely — a band member who was banished from the reserve for six months for setting a house on fire could not invoke the protection against double jeopardy contained in s. 11 (h) of the Charter to bar a federal arson prosecution for the same fire.
However, if there is no such limited sovereignty, that is, if the tribal government is simply the creature of the federal government for prosecution purposes, then the federal prosecution would violate the protection against double jeopardy.
Of course, the situation in Canada is very different and a different analytical approach could well be adopted.
As Justice John Hunter is quoted as saying in your report, the case “raises questions of sufficient complexity” to justify providing publicly funded counsel for the sentence appeal.
Hamar Foster, KC Professor emeritus University of Victoria