State v. Joseph Mitchell
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 128
Docket:	Was-97-579
Argued:	May 5, 1998
Decided:	May 29, 1998	

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN,  DANA, and SAUFLEY, JJ.

STATE OF MAINE

v.

JOSEPH MITCHELL, JR.

DANA, J.

	[¶1]  Joseph Mitchell, Jr. appeals from the judgments of conviction for
criminal threatening with a dangerous weapon (Class C), 17-A M.R.S.A.
§ 209 (1983), and assault (Class C), 17-A M.R.S.A. § 207 (1983), entered in
the Superior Court (Washington County, Alexander, J.) following his
conditional plea of guilty entered pursuant to M.R. Crim. P. 11(a)(2). 
Mitchell challenges the court's (Marsano, J.) denial of his motion to dismiss
the indictment, contending the indictment violated the double jeopardy
provisions of the Maine and the United States Constitutions.  We disagree,
and affirm the judgments.
	[¶2]  On February 18, 1997, Mitchell grabbed his wife's arm during an
argument at their home and threatened her with a loaded shotgun.  Both
Mitchell and his wife are members of the Passamaquoddy Tribe, and their
home is located on the Tribe's Pleasant Point Reservation.  As a result of the
incident, Mitchell was charged with misdemeanor assault before the
Passamaquoddy Tribal Court, entered a plea of guilty at his arraignment on
April 11, 1997, and was sentenced on June 30, 1997, to ten months in jail
with all but four months suspended followed by one year of probation.
	[¶3]  On April 14, 1997, an indictment charging Mitchell with
criminal threatening with a dangerous weapon and felony assault{1} was
returned by a grand jury in the Superior Court (Washington County). 
Following his conviction in the Tribal Court, Mitchell moved to dismiss the
indictment, contending the assault count was precluded by the Double
Jeopardy Clauses of both the United States{2} and Maine Constitutions.{3}  The
court denied the motion, Mitchell entered a conditional plea of guilty, and
this appeal followed.{4}
	[¶4]  Whether a criminal prosecution violates the state or federal
constitutional prohibition against double jeopardy is a question of law that is
reviewed de novo.  State v. O'Connor, 681 A.2d 475, 476 (Me. 1996).  We
have repeatedly held that the right to be protected against double jeopardy
under the Maine Constitution is coextensive with the same right under the
United States Constitution.  See id.; State v. Wilson, 671 A.2d 958, 960 (Me.
1996).  In addition, we have recognized that one of the abuses prohibited
under the clauses is the possibility of a second prosecution for the same
offense after a conviction.  See State v. Christen, 678 A.2d 1043, 1045 (Me.
1996).  This case presents the issue whether the State's prosecution of
Mitchell was for the "same offense" as the prosecution in the Tribal Court.
	[¶5]  Pursuant to the Maine Indian Claims Settlement Act, 30 M.R.S.A.
§§ 6201-6214 (1996) (Maine Act), and the Federal Maine Indian Claims
Settlement Act, 25 U.S.C. §§ 1721-1735 (1994) (Federal Act), the
Passamaquoddy Tribe and the State of Maine entered into an agreement that
defined the relationship between the parties in many important respects. 
Of relevance to this appeal, the Federal Act provides:  "The Passamaquoddy
Tribe . . . [is] authorized to exercise jurisdiction, separate and distinct from
the civil and criminal jurisdiction of the State of Maine, to the extent
authorized by the Maine Implementing Act, and any subsequent
amendments thereto."  25 U.S.C. 1725(f).  In turn, the Maine Act grants the
Passamaquoddy Tribal Court exclusive jurisdiction, separate and distinct
from the State, over all misdemeanor criminal offenses that are committed
on the Indian reservation by members of the Tribe except when the crime is
committed against a person or the property of a person who is not a
member of the Tribe.  30 M.R.S.A. § 6209-A(1)(A) (1996).  The Maine Act
also explicitly provides:  "A prosecution for a criminal offense . . . over which
the Passamaquoddy Tribe has exclusive jurisdiction under this section does
not bar a prosecution for a criminal offense . . . arising out of the same
conduct, over which the State has exclusive jurisdiction."  Id. § 6209-A(4).
	[¶6]  In United States v. Wheeler, 435 U.S. 313 (1978), the United
States Supreme Court rejected a claim that the Double Jeopardy Clause
barred a federal prosecution for statutory rape arising from an incident for
which the defendant had been convicted for the Navajo tribal offense of
contributing to the delinquency of a minor.  The Court, recognizing that the
power to punish offenses against tribal law committed by Tribe members
was part of the Navajos' "primeval sovereignty," held that the "dual
sovereignty" concept was applicable to the case and that the federal
prosecution was not barred.  "The basis for [the dual sovereignty] doctrine is
that prosecutions under the laws of separate sovereigns do not, in the
language of the Fifth Amendment, 'subject [the defendant] for the same
offence to be twice put in jeopardy[.]'"  Wheeler, 435 U.S. at 317.  The Court
explained:

An offence, in its legal signification, means the transgression of a       
law. . . .  Every citizen of the United States is also a citizen of a
State or territory.  He may be said to owe allegiance to two
sovereigns, and may be liable to punishment for an infraction of
the laws of either.  The same act may be an offense or
transgression of the laws of both. . . .  That either or both may (if
they see fit) punish such an offender, cannot be doubted.  Yet it      
cannot be truly averred that the offender has been twice
punished for the same  offence;  but only that by one act he has
committed two offences, for each of which he is justly
punishable.

Id. (quoting Moore v. Illinois, 55 U.S. (14 How.) 13, 19-20 (1852)).
	[¶7]  Mitchell recognizes that the Maine Act provides for subsequent
prosecutions in cases such as his, but contends that the statute is
unconstitutional because the Passamaquoddy Tribe, unlike the Navajo Tribe
in Wheeler, did not have jurisdiction to adopt its own laws prior to the
Settlement Act, and the Tribe was granted jurisdiction simply to enforce
Maine law, not to exercise its own independent law enforcement power. 
Mitchell's argument is unpersuasive.  The plain language of both the Maine
and Federal Acts, as well as the legislative history of the Acts, evidences the
clear intention on the part of the state and federal governments to recognize
the independent sovereignty of the Tribe in certain contexts.{5}  Although
Mitchell is correct that the Passamaquoddy Tribe is treated as a municipality
of the State for some purposes, see, e.g., 30 M.R.S.A. § 6206(1), his
argument that the Tribe's authority derives solely from state and federal
statutes, and therefore is not independent, misinterprets the Settlement
Acts.  The State and Federal Acts did not simply give the Tribe the power to
enforce State law; they explicitly recognized the inherent authority of the
Tribe to prosecute certain crimes that occur on tribal land.
	[¶8]  Moreover, Mitchell does not address the significant public policy
difficulty inherent in his position.  Were the double jeopardy prohibition to
be held applicable in circumstances such as this, "[p]rosecution by one
sovereignty for a relatively minor offense might bar prosecution by the other
for a much graver one, thus effectively depriving the latter of the right to
enforce its own laws."  Wheeler, 435 U.S. at 318.  We addressed this public
policy concern in the context of a state prosecution for robbery following a
federal prosecution arising from the identical incident in State v.
Castonguay, 240 A.2d 747 (Me. 1968).  In rejecting the defendant's double
jeopardy argument, we noted that "[p]ublic policy, taken apart from strict
constitutional principles, would not be served by the prohibition of the
second State prosecution under our supervisory control of the State Courts." 
Id. at 750.
	[¶9]  Mitchell committed two crimes when he assaulted his wife--the
misdemeanor crime of assault subject to prosecution by the Tribe and the
felony crime of assault with two prior convictions subject to prosecution by
the State.  Cf. id. ("Two crimes have been committed--State and Federal."). 
Accordingly, his prosecution in the State court did not violate the
prohibition against double jeopardy provided by the Maine and United States
Constitutions.
	The entry is:
					Judgments affirmed.
Attorneys for State:

Michael E. Povich, District Attorney 
Paul F. Cavanaugh, II, Asst. Dist. Atty., (orally)
88 South Street
Calais, ME 04619

Attorney for defendant:

Joyce Mykleby, Esq., (orally)
P O 151
Machias, ME 04654

FOOTNOTES******************************** {1}. "A person is guilty of assault if he intentionally, knowingly, or recklessly causes bodily injury or offensive physical contact to another." 17-A M.R.S.A. § 207(1) (1983). The law in effect during the time of the proceedings at issue provided that assault against a member of the actor's family or household, ordinarily a Class D crime, is a Class C crime if the actor had two or more prior Maine convictions for violations of Title 17-A, chapter 9 (offenses against the person) or violations of a protection from abuse order. See 17-A M.R.S.A. § 212(1) (Supp. 1996), repealed and replaced by P.L. 1997, ch. 460, §§ 1, 5 (effective September 19, 1997). The indictment charged that Mitchell had two prior assault convictions against a member of his family or household as defined in 17-A M.R.S.A. § 212(3). {2}. "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . ." U.S. Const. amend. V. {3}. "No person, for the same offense, shall be twice put in jeopardy of life or limb." Me. Const. art I, § 8. {4}. Mitchell also challenged the court's jurisdiction over the criminal threatening count. He does not pursue that challenge on appeal. {5}5. The Senate Report accompanying the Federal Settlement Act provides a clear and concise explanation of the intended relationship between the tribal courts and the State courts regarding the precise issue presently in dispute: Under the Maine Implementing Act, the Tribe and Nation agree to adopt the laws of the State as their own. Such adoption does not violate the principles of separate sovereignty. Though identical in form and subject to redefinition by the State of its laws, the laws are those of the tribes. Under Section 6209 of the Maine Implementing Act, procedures in the courts of the tribes are to be governed under Federal law, not State law. In addition, principles of double jeopardy and collateral estoppel shall not apply as between the tribal and State courts. This is entirely in keeping with the principles enunciated in U.S. v. Wheeler, 435 U.S. 313 (1978) describing the relationship between tribal courts and Federal courts. S. Rep. No. 96-957, at 29-30 (1980).