Final editing by Lou: August 1, 2000




Appellant )
) AP-004-92 #1900/91
v. )
Respondent )
______________ )

Before S EKAQUAPTEWA, Chief Judge, and Lomayesva and ABBEY, Judges.

Factual and Procedural Background

On November 25, 1991 the defendant was exiting a house of a known "bootlegger". The arresting officer saw him exiting the house and "circled back" to see if he was the member of the household who had an outstanding arrest warrant. He was not. The defendant was carrying a brown paper bag under one arm. The officer asked the defendant what was in the bag. The defendant replied, "Nothing". The officer then reached out and touched the bag, felt "the shape and feel of 375 ml glass wine bottles," and heard the "slosh of a liquid." He placed the defendant under arrest on the charge of wrongful possession of alcoholic beverages, a violation of Hopi Tribal Ordinance No. 21, Section 3.3.83. He then searched the bag and found four bottles of "Thunderbird" wine.

The Tribe presented the wine, the bag, and chain of custody 1 at the trial. The defendant did not object to the evidence. The arresting officer testified to the above facts, and the defendant did not object. At the end of trial, the judge held that the officer did not have an articulable suspicion of wrong-doing prior to making the stop. The defendant was found "not guilty of any law violation".

The Tribe appeals on two grounds. First, the judge erroneously found that the officer did not have a reasonable articulable suspicion of criminal activity. Second, the evidence was not objected to by the defendant and it is not within the purview of the court to ignore it. We do not reach these issues, however. Before arriving at these issues, we must determine if the doctrine of double jeopardy exists in Hopi criminal jurisprudence, and if so, whether an appeal in the instant case constitute double jeopardy. We conclude that double jeopardy doctrine does apply to Hopi criminal cases that an appeal of an acquittal would violate that right. We therefore dismiss the appeal.


We hold that the double jeopardy doctrine applies in a Hopi criminal case. Neither the Hopi Constitution nor Ordinance 21 refer to double jeopardy. However, the Indian Civil Rights Act of 1968 (ICRA) established that no Indian tribe may "subject any person for the same offense to be twice put in jeopardy". 25 U.S.C 1302(3). This language mirrors that of the United States Constitution. U.S.C.A. Const. Amend 5. It has not been established that the Hopi 2 Courts are bound by ICRA. The Hopi Tribe did not write or adopt ICRA. Rather, it was the United State Congress which passed the legislation to ensure that Indians on reservations were afforded similar liberties as those granted to United States Citizens through the Constitution and the Bill of Rights. While Hopi has not directly accepted ICRA, neither has it rejected it.

The double jeopardy doctrine is an elemental principle of the United States criminal law. Green v. United States, 355 U.S. 184, 188 (1957). No "person shall be subject for the same offense to be twice put in jeopardy of life or limb". U.S.C.A.Const. Amend 5. The "most fundamental rule" of double jeopardy jurisprudence is that a "verdict of acquittal [can] not be reviewed, on error or otherwise" because it would place the defendant in jeopardy twice. United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977) (referring to United States v. Ball, 163 U.S. 662 (1896)). Thus, a verdict of not guilty is not appealable in the United States courts.

The purpose of double jeopardy is to protect both the society and the defendant. "At the heart of this policy is the concern that permitting the sovereign freely to subject the citizen to a second trial for the same offense would arm Government with a potent instrument of oppression." Green, 355 U.S. at 188. The doctrine insures that the members of the Tribe rely on a verdict of "not guilty." For the Tribal Courts to maintain their status as arbitrators of justice, the people of the Tribe must know that the courts pronouncements are valid.

The double jeopardy doctrine also protects defendants. It prohibits multiple attempts to convict a defendant and "thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a constant state of anxiety and insecurity." Id. The doctrine thus serves the purpose of allowing the general population to feel secure from government oppression, increases confidence in the courts, and provides a form of finality to individual defendants.

ICRA applies the Double Jeopardy doctrine to the Tribe. The Hopi Tribe has not created a provision for the Tribe to appeal an acquittal or expressly rejected the doctrine. Double jeopardy is a basic component of the United States legal doctrine and serves goals that will protect the Hopi people and increase the Hopi confidence in the courts.

The Hopi Trial Court did not hold a pretrial hearing to decide the admissibility of the evidence. The granting or denial of a motion to suppress evidence at such a hearing is appealable. Instead, the Hopi Trial Court suppressed the evidence and granted a judgment of acquittal at the end of his trial on the merits. This is the most basic type of bar against retrial. Sanabria v. United States, 437 U.S. 54 (1978) (judgment of acquittal granted by the trial judge is an absolute bar to reprosecution). The doctrine of double jeopardy can be complicated, but no court allows retrial after acquittal, no matter how "mistaken" the trial court may have been.

The Tribal Prosecutor asserts that if "the trial court has neglected its duty, it certainly cannot hold such failure against the Tribe." This gets at the heart of the matter. It is the Tribe which has the duty to prove the defendant guilty. It is the Tribe which has the burden of establishing and running the courts. If, through error, the defendant is found not guilty, it is the Tribe which must bear the burden. In no circumstances can a failure of the courts or prosecution be held against the defendant.

We hold that the principle of Double Jeopardy does not allow a retrial of the defendant upon acquittal. The Tribe can not appeal. The appeal is DISMISSED.


Emory Sekaquaptewa Date

Fred Lomayesva Date

Jay Abbey Date