NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LESTER W. BOOTH, JR., )
) Court of Appeals No. A-5126
Appellant, ) Trial Court No. 1KE-93-096 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1428 - August 18, 1995]
________________________________)
Appeal from the District Court, First Judicial
District, Ketchikan, Linn H. Asper, Magistrate, and George L.
Gucker, Judge.
Appearances: Barbara E. Kissner, Assistant Public
Defender, Ketchikan, and John B. Salemi, Public Defender,
Anchorage, for Appellant. Stephen R. West, Assistant District
Attorney, Ketchikan, and Bruce M. Bothelo, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and Mannheimer,
Judges.
MANNHEIMER, Judge.
On January 22, 1993, on the Annette Islands Reserve,
Lester W. Booth, Jr., kicked Debbie Booth in the stomach and the
face. He was subsequently charged with the offense of fourth-
degree assault under the laws of the State of Alaska, AS
11.41.230(a). Simultaneously, Booth was charged with the
offenses of assault, battery, and threat or intimidation under
the laws of the Metlakatla Indian Community, Ordinance No. 86-
735a, 5, 7, & 19.
On January 25th, Booth appeared in the Metlakatla court
and pleaded not guilty to the three Metlakatla charges. Later
that same day, Booth appeared in the Alaska district court in
Ketchikan and pleaded no contest to the state charge. However,
when District Court Judge George L. Gucker learned that there was
also a Metlakatla prosecution pending against Booth, he deferred
Booth's sentencing and directed the prosecutor to find out about
the Metlakatla charges. While the state prosecution was on hold,
Booth pleaded guilty to the Metlakatla criminal charges. The
Metlakatla court fined him a total of $710 with $310 suspended
($400 to pay).
On April 28, 1993, Booth again appeared in the
Ketchikan district court, this time represented by an attorney.
Booth asked the district court to dismiss the fourth-degree
assault charge. He argued that the State of Alaska did not have
jurisdiction over criminal offenses occurring on the Annette
Islands Reserve. In the alternative, Booth argued that his
conviction in the Metlakatla court barred any continued
prosecution under state law for the same conduct.
A few weeks later, Booth asked the district court to
allow him to withdraw his no contest plea to the state charge.
Judge Gucker granted Booth's request to withdraw his plea, and he
scheduled a hearing on Booth's motion to dismiss. Following this
hearing, Judge Gucker denied Booth's motion. Booth then pleaded
no contest to the charge of fourth-degree assault, reserving the
right to appeal his conviction on the ground that the State was
legally barred from prosecuting him _ either because the State
lacked jurisdiction over the offense, or because the Metlakatla
court had already entered judgement against Booth. See Cooksey
v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
As explained in more detail below, we hold that the
State of Alaska had jurisdiction to prosecute Booth for his
assault on his wife, but we also hold that AS 12.20.010 barred
the State from prosecuting Booth after judgement was entered
against him by the Metlakatla court.
Does the State of Alaska Have Jurisdiction Over Crimes
Committed in the Annette Islands Reserve?
In 1887, following a dispute with the government of
British Columbia, about eight hundred Indians migrated to Alaska,
where they established the Metlakatla Community. In 1891,
Congress set aside the Annette Islands as a reserve for the Metla
katlans.1 See Metlakatla Indian Community, Annette Islands
Reserve v. Egan, 369 U.S. 45, 48-54; 82 S.Ct. 552, 556-59; 7
L.Ed.2d 562, 566-69 (1962); Atkinson v. Haldane, 569 P.2d 151,
153-56 (Alaska 1977). In 1915, the Secretary of the Interior
authorized the Metlakatla Community to pass local ordinances to
govern itself; however, the Secretary "subjected self-government
of Metlakatla not only to federal oversight but to territorial
laws as well". Metlakatla Indian Community, 369 U.S. at 54, 82
S.Ct. at 558-59, 7 L.Ed.2d at 569. In 1944, the Secretary
approved a constitution and by-laws drafted by the Metlakatla
Indian Community, establishing a local government that includes a
judiciary. See Metlakatla Indian Community Ordinance No. 653,
establishing a magistrate's court and setting procedures for the
trial of offenses.
The question presented in Booth's case is whether the
State of Alaska exercises concurrent jurisdiction over crimes
committed within the Annette Islands Reserve. This is a question
of federal law, and the answer is given by 18 U.S.C. 1162(a).
The pertinent portion of this federal statute reads:
Each of the States or Territories listed
in the following table shall have
jurisdiction over offenses committed by or
against Indians in the areas of Indian
country listed opposite the name of the State
or Territory to the same extent that such
State or Territory has jurisdiction over
offenses committed elsewhere within the State
or Territory, and the criminal laws of such
State or Territory shall have the same force
and effect within such Indian country as they
have elsewhere within the State or Territory:
State or Indian Country Affected
Territory of
Alaska . . . . . . . . All Indian
country within the State, except that on
Annette Islands, the Metlakatla Indian Commu
nity may exercise jurisdiction over offenses
committed by Indians in the same manner in
which such jurisdiction may be exercised by
Indian tribes in Indian country over which
State jurisdiction has not been extended.
The crucial language of this statute, for purposes of Booth's
appeal, is the exception clause pertaining to the Metlakatla
Community. The federal statute states that the Metlakatla
Community "may exercise jurisdiction over offenses committed by
Indians in the same manner [as] such jurisdiction [is] exercised
by Indian tribes in Indian country over which State jurisdiction
has not been extended". Booth contends that this language means
that the Metlakatla Community exercises sole jurisdiction over
crimes committed by Indians within the Annette Islands Reserve.
However, both the language of the statute itself and its
legislative history support the conclusion that the Metlakatla
Community and the State of Alaska exercise concurrent
jurisdiction over crimes committed by Indians within the Annette
Islands Reserve.
The federal statute begins by giving the State of
Alaska jurisdiction over offenses committed in "all Indian
country within the State", and then provides the exception for
the Metlakatla Community. The language of the exception does not
explicitly give the Metlakatla Community exclusive jurisdiction
over such offenses; rather, the statutory language only empowers
the Metlakatlans to exercise jurisdiction. While the statute
authorizes the Metlakatlans to exercise criminal jurisdiction "in
the same manner" as other Indian tribes who have exclusive
jurisdiction within their reservations, this is not necessarily
the same as a grant of exclusive jurisdiction. It can also mean
that the Metlakatlans have undiminished concurrent jurisdiction
over offenses committed by Indians within the Reserve. Compare
Organized Village of Kake v. Egan, 369 U.S. 60, 67-71; 82 S.Ct.
562, 566-69; 7 L.Ed.2d 573, 579-81 (1962), in which the United
States Supreme Court construed language in the Alaska Statehood
Act directing that the federal government should retain "absolute
jurisdiction and control" over federally owned lands within
Alaska. The Supreme Court interpreted this provision of the
Statehood Act to mean that the federal government's control over
federal lands within Alaska would remain "undiminished" (but
concurrent) rather than "exclusive".
We note that the wording of the Metlakatla exception
does not follow the pattern Congress used when it created
enclaves of exclusive Indian jurisdiction in other states. See,
for example, the listings in 18 U.S.C. 1162(a) for Minnesota
("All Indian country within the State, except the Red Lake
Reservation") and for Oregon ("All Indian country within the
State, except the Warm Springs Reservation"). This difference in
the wording of the Metlakatla exception suggests that Congress
intended for the Metlakatla Community's jurisdiction to be
concurrent with the State of Alaska's jurisdiction rather than
exclusive.
Congress did not enact the disputed language involving
the Metlakatla Community until 1970; the prior version of the
Alaska paragraph of the statute simply gave the Territory of
Alaska criminal jurisdiction over "[a]ll Indian country within
the Territory". Public Law No. 85-615, 1, 72 Stat. 545 (1958).
One Alaska commentator describes the rationale of the 1970
amendment as follows:
The Metlakatla residents belatedly learned
that [under the 1958 version of the statute]
they no longer retained previously exercised
criminal jurisdiction over minor offenses.
Because no state troopers or magistrates
worked in Metlakatla, inadequate law enforce
ment on the reservation resulted under
P[ublic] L[aw] 280. Consequently, in 1970,
Congress passed an exception to PL 280's
criminal jurisdictional grant that conferred
concurrent criminal jurisdiction on the
Metlakatla Community.
Susanne Di Pietro, Tribal Court Jurisdiction and Public Law 280:
What Role for Tribal Courts in Alaska?, 10 Alaska Law Rev. 335,
354 n.112 (1993) (citations omitted).
This construction of the statute is amply supported by
the statute's legislative history. The House of Representatives
Report, the Interior Department Report, the Justice Department
Report, and statements from Representatives Donohue and Pollock
all repeatedly and specifically state that, under the 1970
amendment, the Metlakatla Community would be granted "concurrent"
criminal jurisdiction with the State of Alaska. In particular,
the House Report states:
The language of the bill makes a specific
reference to the exercise of similar jurisdic
tion under the law now applicable in the case
of other Indian tribes. It would be provided
that the [Metlakatla] community may exercise
jurisdiction over offenses committed by
Indians "in the same manner" in which that
jurisdiction may be exercised by Indian
tribes in Indian country over which State
jurisdiction has not been extended. As is
obvious from the departmental report and this
report, State jurisdiction has been extended
over this community, and under this amendment
the State will continue to have concurrent
jurisdiction. The committee interprets the
reference to the exercise of jurisdiction "in
the same manner" as requiring that the
jurisdiction be exercised in accordance with
the laws applicable to the other tribes.
1970 U.S. Code Congress'l & Admin. News 4783, 4785-86.
In addition, the Senate Report supports the conclusion
that the Metlakatla Community's jurisdiction was intended to be
concurrent. The original Senate bill had explicitly provided
that the State of Alaska would have criminal jurisdiction over
"[a]ll Indian country within the State, except that on the
Annette Islands, the Metlakatle [sic] Indian community may
exercise concurrently such jurisdiction as was vested in it
immediately prior to the date of enactment of the Act of August
8, 1958 (72 Stat. 545)." The Senate ultimately replaced that
language with the language that now exists in 18 U.S.C.
1162(a). However, the Senate Report explained that this change
was not intended to alter the substance of the earlier version.
Instead, the changed language was
a technical amendment which makes the
language of the bill more in harmony with
other sections of title 18 regarding Indian
affairs. The amendment has the same purpose
as the original language of S. 902[.]
116 Congressional Record 32585, 32586 (Sept. 18, 1970).
Based both upon the wording of 18 U.S.C. 1162(a) and
upon the legislative history of that statute, we conclude that
both the State of Alaska and the Metlakatla Indian Community have
concurrent jurisdiction over offenses committed by Indians within
the Annette Islands Reserve. The State of Alaska therefore had
the legal right to bring charges against Booth, and the district
court had the legal authority to adjudicate those charges, even
though Booth's crime also falls within the concurrent
jurisdiction of the Metlakatla Indian Community.
Does the Federal Double Jeopardy Clause Prohibit the
State of Alaska from Prosecuting Booth?
Booth argues that the double jeopardy clause of the
Fifth Amendment to the United States Constitution prohibits the
State from prosecuting him after he was convicted in the
Metlakatla Community court. We conclude, however, that the
federal double jeopardy clause does not prohibit the State of
Alaska from separately prosecuting and punishing Booth.
Federal double jeopardy law does not prohibit separate
sovereigns from separately prosecuting and punishing the same
criminal act. Thus, if a person commits a crime that is
prohibited by both federal and state law, both the federal
government and the state government can separately prosecute the
person for that crime. Bartkus v. Illinois, 359 U.S. 121, 79
S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359
U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). The same is true
when a person's crime violates both federal law and the law of a
sovereign Indian tribe: both the federal government and the tribe
may separately prosecute the person for the crime. United States
v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978).
Compare Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25
L.Ed.2d 435 (1970), holding that municipalities are not separate
sovereigns for double jeopardy purposes because their power to
prosecute criminal offenses "springs from the same organic law"
as the state's power; therefore, the double jeopardy clause is
violated when a defendant is successively prosecuted first by a
municipality and then by the state.
Regardless of whether the Metlakatla Indian Community
is a "tribe" in the usual sense, it is clear that the
Metlakatlans' limited right of self-governance does not stem from
any enactment of the State of Alaska. For this reason, we
conclude that the Metlakatla Community is a "separate sovereign"
for federal double jeopardy purposes. Applying the rule of
United States v. Wheeler, we therefore conclude that the federal
double jeopardy clause does not bar the State of Alaska from
separately prosecuting Booth for assault.2
Does AS 12.20.010 Bar the State of Alaska from Prosecut
ing Booth?
(a) Is the Metlakatla Community a "Territory" for
Purposes of AS 12.20.010?
Having decided that the State of Alaska has criminal
jurisdiction over Booth, and that the State's prosecution of
Booth is not barred by the double jeopardy clause, we must next
address the issue of whether the State's prosecution of Booth is
barred by AS 12.20.010. This statute provides:
When an act charged as a crime is within
the jurisdiction of the United States,
another state, or a territory, as well as
[within the jurisdiction] of this state, a
conviction or acquittal in the former is a
bar to the prosecution for it in this state.
AS 12.20.010 is designed to complement the double
jeopardy clause by protecting criminal defendants against
successive prosecutions by different governments. About half of
the states have decided that the "separate sovereigns" doctrine
can lead to overly harsh results. Accordingly, these states have
enacted statutes that either limit or extinguish the power of
their own state to prosecute a defendant after another sovereign
has already done so.3 See W. LaFave & J. Israel, Criminal
Procedure (1984), 24.5(b)-(c), Vol. 3, pp. 100-03. Many of
these state statutes are catalogued in the American Law
Institute's Model Penal Code and Commentaries (1985), 1.10,
Commentary, nn. 15, 17, 18, & 21. However, Alaska's statute is
not based on the Model Penal Code or any of its tentative drafts;
rather, Alaska's statute dates back to territorial days.4
Booth argues that, because he was convicted of crimes
under Metlakatlan law based on his assault upon Debbie Booth,
AS 12.20.010 bars the State from subsequently prosecuting him for
any crime arising from the same act of assault. The initial
hurdle for Booth's argument is that AS 12.20.010 applies only to
acts "within the jurisdiction of the United States, another
state, or a territory", and to convictions or acquittals under
the laws of one of these governmental entities.
Because the Metlakatla Indian Community is neither a
state nor a federal territory, AS 12.20.010 seemingly does not
encompass convictions and acquittals under Metlakatla law.
However, while the Metlakatla Community is not a state or a
federal territory, its right of limited self-governance is not
derived from the organic law of the State of Alaska. The
Metlakatla Community's unusual status requires us to closely
examine the legislative intent underlying AS 12.20.010.
When a court interprets a statute, "the goal ... is to
give effect to the legislature's intent". Tesoro Alaska
Petroleum Co. v. Kenai Pipeline Co., 746 P.2d 896, 905 (Alaska
1987). Because the key question is, "What did the legislature
intend this statute to accomplish?", it is foreseeable that
different statutes, dealing with different problems, will require
different definitions of a state government's relationship to
Indian tribes or communities. Compare Tracy v. Superior Court,
810 P.2d 1030, 1035-1046 (Ariz. 1991) (holding that the Navajo
Nation is a "territory" for purposes of the Uniform Act to Secure
the Attendance of Witnesses) with Queets Band of Indians v.
State, 682 P.2d 909 (Wash. 1984) (holding that the Quinault
Indian and the Muckleshoot Indian reservations are not "territo
ries" for purposes of Washington's commercial vehicle
registration reciprocity law).
The Alaska Legislature intended AS 12.20.010 to
insulate defendants from dual prosecution by separate sovereigns.
As we explained above, the Metlakatla Community is a separate
sovereign for double jeopardy purposes. It therefore seems that
the policy of AS 12.20.010 would be best realized by treating the
Metlakatla Community as the equivalent of another state or
territory. Employing this rationale, at least one state court
has held that an Indian reservation is a "territory" for purposes
of applying that state's counterpart to AS 12.20.010. People v.
Morgan, 785 P.2d 1294 (Colo. 1990). The court in Morgan
concluded:
Exclusion of tribal court prosecutions
from [Colorado's successive prosecutions
statute] would perpetuate the application of
the dual sovereignty doctrine in some
instances, contravening an apparent purpose
of the legislature in enacting the statute.
The better reading of [our statute] uniformly
abolishes the dual sovereignty doctrine,
prohibiting prosecution under Colorado law
when the defendant has been subjected to a
prior prosecution by any separate sovereign _
federal, state, or tribal.
Morgan, 785 P.2d at 1298 (emphasis in the original).
We find the reasoning of the Colorado court persuasive.
We are convinced that the legislative intent behind AS 12.20.010
calls for inclusion of the Metlakatla Indian Community as a
"territory" under the statute. The intention of the statute is
to grant defendants greater protection against successive
prosecutions than is afforded by the double jeopardy clause.
Interpreting the statutory language to include the Metlakatla
Community best realizes this intention.
(b) Was Booth Subjected to the Type of Prosecution in
Metlakatla that Creates a Bar to Further Prosecution by the
State?
The State argues that, even if Metlakatla is a
territory for purposes of AS 12.20.010, Booth's prosecution in
Metlakatla does not create a bar to further prosecution by the
State. The State's argument has three parts:
First, the State points out that the double jeopardy
clause does not completely bar successive prosecutions, but only
successive prosecutions for the same "offense".5 Under
established double jeopardy law, a defendant's prior prosecution
for a traffic infraction or other minor, non-criminal violation
will not bar the State from later prosecuting the defendant for a
criminal offense based on the same conduct. Carlson v. State,
676 P.2d 603 (Alaska App. 1984); State v. Currie, 197 A.2d 678,
684-85 (N.J. 1964).
Second, the State argues that, even though AS 12.20.010
was enacted to restrict the scope of the "separate sovereigns"
doctrine, there is no indication that the Alaska Legislature
intended AS 12.20.010 to augment any other aspect of the double
jeopardy clause. Thus, if successive prosecutions by the same
sovereign would be allowed under the double jeopardy clause,
successive prosecutions by separate sovereigns should also be
allowed under AS 12.20.010.
Third and finally, the State argues that, for double
jeopardy purposes, Booth was not subjected to a "criminal
prosecution" in Metlakatla. The State asserts that Booth faced
only minor penalties for his violations of Metlakatla law. In
particular, the State points out that Booth faced no possibility
of imprisonment under Metlakatla law. If Booth has never faced
criminal penalties, so that the double jeopardy clause would not
bar Booth's later prosecution by the same sovereign, then (the
State reasons) AS 12.20.010 should not bar a later prosecution by
a different sovereign.
The State's argument requires us to scrutinize the
penalties provided by Metlakatla law for Booth's offenses. Booth
was accused of violating three sections of the Metlakatla
Community's code of criminal offenses (contained in Metlakatla
Ordinance No. 86-735a): "assault", "battery", and "threat or
intimidation". Under the Metlakatla criminal code, a violation
of any of these three sections is an "offense". However,
imprisonment is not an authorized punishment for these offenses.
For the offense of battery, Metlakatla law authorizes a fine of
no more than $360 and not more than six months of community
labor. For the offenses of assault and threat, Metlakatla law
authorizes a fine of no more than $250 and not more than three
months of community labor. Under the Metlakatla criminal code,
"community labor" can take the form of any work which, in the
magistrate's judgement, results in the public good. See
Metlakatla Ordinance No. 86-735a, 5, 7, 19, & 11A; Metlakatla
Ordinance No. 653, 11; and Metlakatla Constitution, Article V,
2.
We assume that the State is correct in arguing that
fines of no more than $360 are not the sort of severe sanction
that denotes criminality. However, we conclude that a sentence
of "community labor" is a criminal penalty.
Alaska law has its own counterpart to Metlakatla's
"community labor". Under AS 12.55.015(6), a judge may require a
defendant "to carry out a continuous or periodic program of commu
nity work under AS 12.55.055" _ but only after the defendant has
been convicted of an offense.6 More to the point, the Thirteenth
Amendment to the United States Constitution prohibits
"involuntary servitude, except as a punishment for a crime
whereof the party shall have been duly convicted". We therefore
hold that forced labor is a criminal penalty under Alaska law;
thus, an offense punishable by forced labor is a criminal offense
for purposes of AS 12.20.010.
We deliberately use the term "punishable" rather than
"punished". As noted above, Booth's total penalty for the three
offenses was a composite fine of $710 with $310 suspended ($400
to pay). He was not sentenced to any labor. However, the
question of whether Booth was subjected to criminal prosecution
(for double jeopardy purposes) hinges, not on the sentence Booth
eventually received, but on Booth's potential risk of being
sentenced to forced labor.
Under Alaska constitutional law, it is the potential
penalty for a crime that determines whether the accused is
entitled to a jury trial, Baker v. Fairbanks, 471 P.2d 386, 402
(Alaska 1970), and whether the accused is entitled to the
assistance of a court-appointed attorney, Alexander v. Anchorage,
490 P.2d 910, 915 (Alaska 1971).7 These two decisions do not
directly address the issue of what is a criminal offense for
double jeopardy purposes. However, it is difficult to conceive
that the Alaska Supreme Court would ever hold that the potential
penalty for a crime was severe enough to require court-appointed
counsel and trial by jury but at the same time too minor for the
crime to constitute an "offense" for double jeopardy purposes.
The tacit rationale of Baker and Alexander is that the
defendant's entitlement (or lack of entitlement) to basic
procedural rights must be determined before the trial begins, not
after the sentence is imposed. This same rationale applies just
as forcefully in the double jeopardy arena.
The double jeopardy clause's prohibition of successive
prosecutions is premised on the understanding that it is
fundamentally unfair to repeatedly subject a defendant to the
"heavy pressures and burdens _ psychological, physical, and
financial _ [imposed] on a person charged [in criminal
proceedings]. The purpose of the Double Jeopardy Clause is to
require that he be subject to [this] experience only once 'for
the same offence'." Breed v. Jones, 421 U.S. 519, 530; 95 S.Ct.
1779, 1786; 44 L.Ed.2d 346, 355 (1975).
Courts have recognized that the "pressures and burdens"
of a criminal prosecution can be gauged, in large measure, by the
extent of the defendant's potential liability if convicted. A
defendant must make his or her "psychological, physical, and
financial" commitments to the litigation at the outset, not at
the end. Thus, it is the defendant's potential liability that
drives the defendant's decision-making, particularly concerning
the extent of the defendant's investment of energy and resources.
And it is the defendant's potential liability that colors the
"psychological [and] physical" experience of litigation.
This same reasoning underlies decisions such as Carlson
v. State, 676 P.2d 603 (Alaska App. 1984), holding that a
prosecution for a traffic infraction does not constitute a prior
"criminal prosecution" for double jeopardy purposes. Again, the
key is the defendant's potential liability if found guilty.
Because the potential penalty for a traffic violation is small,
and because the stigma of being found guilty of a traffic
violation is slight, a defendant facing trial does not suffer the
pressures and expense of a normal criminal trial. This reasoning
was elucidated by the New Jersey Supreme Court in State v.
Currie, 197 A.2d 678, 685 (N.J. 1964):
Motor Vehicle Act violations are generally
tried quickly and informally before local
police magistrates who are in some instances
not even attorneys at law. The evidential
presentation may be very limited and the
legal representation may likewise be very
limited or entirely absent. The maximum
fines and terms of imprisonment are minor in
comparison to those fixed for violation of
our Crimes Act and indeed they are even much
lower than those which may be imposed for
violation of our Disorderly Persons Act. The
defendant, if found guilty, may for the most
part anticipate the imposition of a modest
fine. ... The elements of oppression or
harassment historically aimed at by the
constitutional and common law prohibition are
not significantly involved; and permitting
the second prosecution would not violate the
reasonable expectations attendant upon the
first proceeding[,] while barring it would
operate with gross unfairness to the State.
In Carlson, this court agreed with the New Jersey court
that a defendant charged with a traffic violation who faces the
possibility of a small fine at the end of a short, informal
proceeding has not been subjected to a criminal prosecution for
double jeopardy purposes. But the situation is different for a
defendant facing months of forced labor as the potential penalty
for conduct that any reasonable person would label "criminal".
Such a defendant experiences a "criminal prosecution".
If Booth had earlier been prosecuted by the State of
Alaska for his assault, and if Booth had faced a potential
penalty of forced labor, this would have been a "criminal
prosecution" under Alaska law. Having been in jeopardy once,
Booth could not again be prosecuted by the State for the same
offense.
The purpose behind AS 12.20.010 is to extend the
protection against successive prosecutions to situations in which
separate sovereigns institute the prosecutions. We therefore
hold that when Booth was prosecuted and convicted by the
Metlakatla Indian Community and faced a potential penalty of
forced labor, this constituted a criminal prosecution for
purposes of AS 12.20.010.8 Because Booth has already been
convicted once for his assault, AS 12.20.010 prohibits the State
of Alaska from now prosecuting Booth again for that same assault.
Conclusion
For the reasons explained in this opinion, we construe
AS 12.20.010 to prohibit the State of Alaska from maintaining
this prosecution against Booth. We therefore REVERSE Booth's
conviction and we direct the district court to dismiss the fourth-
degree assault charge.
_______________________________
1 The background and governance of the Metlakatla Community are described in
United States v. Booth, 161 F.Supp. 269, 270 (D. Alaska 1958).
2 Booth's brief to this court also mentions the double jeopardy clause of the
Alaska Constitution (Art. I, Sec. 9). However, this state constitutional
provision is mentioned only in passing; Booth does not argue that Alaska's
double jeopardy clause confers any greater rights on him than does the
corresponding federal double jeopardy clause. For this reason, we do not
address the issue of whether Alaska's double jeopardy clause should be
interpreted more broadly than its federal counterpart.
3 A similar provision, dealing only with drug offenses, is found in AS
11.71.310, which Alaska took from the Uniform Controlled Substances Act,
405: "If a violation of this chapter is a violation of a federal law or
the law of another state, a conviction or acquittal under federal law or
the law of another state for the same act is a bar to prosecution in this
state."
4 Section 2118 of the 1913 Compiled Laws of Alaska read:
That when an act declared to be a crime is within the jurisdiction of any
State, county, or Territory, as well as within [this] District, a
conviction or acquittal therefor in the former is a bar to a prosecution
therefor in [this] District.
With a small editorial change (the word "District" changed to "Territory"), this
statute was recodified as 66-3-4 of the 1949 Compiled Laws of Alaska.
5 The Fifth Amendment to the United States Constitution provides, "[N]or shall
any person be subject for the same offence to be twice put in jeopardy of
life or limb".
6 AS 12.55.055 provides, in pertinent part:
Community Work.
(a) The court may order a defendant convicted of an offense to perform
community work as a condition of probation, a suspended sentence, or
suspended imposition of sentence, or in addition to any fine or restitution
ordered. If the defendant is sentenced to imprisonment, the court may
recommend to the Department of Corrections that the defendant perform
community work.
(b) Community work includes work on projects designed to reduce or
eliminate environmental damage, protect the public health, or improve
public lands, forests, parks, roads, highways, facilities, or education.
Community work may not confer a private benefit on a person except as may
be incidental to the public benefit.
(c) The court may offer a defendant convicted of an offense the option of
performing community work in lieu of a fine or a portion of a fine if the
court finds the defendant is unable to pay the fine. The value of
community work in lieu of a fine is $3.00 per hour.
(d) The court may offer a defendant convicted of an offense the option of
performing community work in lieu of a sentence of imprisonment.
Substitution of community work shall be at a rate of eight hours for each
day of imprisonment. A court may not offer substitution of community work
for any mandatory minimum period of imprisonment or for any period of a
presumptive term of imprisonment.
7 Compare Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530
(1972), in which the Supreme Court held that the Sixth Amendment does not
require the states to provide counsel to every defendant tried for a minor
offense that carries a potential sentence of incarceration; however, if a
defendant is not provided with counsel, the state can not sentence the
defendant to incarceration.
8 We recognize that Metlakatla criminal procedure is significantly more
informal than Alaska criminal procedure. Under Metlakatla Ordinance No.
653, offenses are tried before a magistrate sitting without a jury. The
government's case is presented by the Chief Constable. Though a defendant
has the right to hire an attorney, a defendant has no right to counsel at
public expense. See Metlakatla Ordinance No. 653, 4(a) & 13.
That is, Metlakatla's criminal procedure is quite similar to the procedure
employed by Alaska courts when adjudicating traffic infractions and other
minor "violations". See AS 11.81.900(b)(57); AS 28.40.050; State v.
Clayton, 584 P.2d 1111 (Alaska 1978). Nevertheless, for double jeopardy
purposes, it is the potential penalty that primarily determines whether the
proceeding is "criminal" or "non-criminal".
