The Chief Little Wolf Capito Building of the Northern Cheyenne Tribe of Montana. Photo: Jimmy Emerson
Law

Appeals court affirms conviction in Northern Cheyenne Tribe manslaughter case





A citizen of the Northern Cheyenne Tribe can be prosecuted by tribal and federal authorities for the same crime, a federal appeals court ruled last week.

Tawnya Bearcomesout asserted that her constitutional rights were violated because she was charged by the federal government after she had already been charged by her tribe. But the 9th Circuit Court of Appeals said that wasn't the case because the tribe and the United States are separate sovereigns.

"This argument is foreclosed," the court wrote in a short, unanimous memorandum on August 17, a mere 8 days after the case was submitted.

The memo cited the U.S. Supreme Court decision in Commonwealth of Puerto Rico v. Sanchez Valle as precedent. Although the 2016 case had nothing to do with Indian Country, the issue of tribes as separate sovereigns was discussed at length in the majority opinion, a concurring opinion and a dissent.

"A tribe’s power to punish pre-existed the Union, and so a tribal prosecution, like a State’s, is 'attributable in no way to any delegation . . . of federal authority,'" Justice Elena Kagan wrote for the court.

The decision means people like Bearcomesout can be prosecuted in the tribal and federal systems for the same crime without violating the Double Jeopardy Clause of the U.S. Constitution.

In Bearcomesout's case, she pleaded guilty last August to one charge of involuntary manslaughter. She admitted she stabbed and killed her common-law husband -- identified in court filings as "B.B." -- in November 2014 during a fight in which she said she was attacked.

"Bearcomesout stated that she and B.B. got into an altercation on the night of his death and that he hit her head against the sink. She explained that she stabbed B.B. because he was beating on her and nobody was helping her," an offer of proof filed by federal prosecutors stated. Bearcomesout also suffered some injuries during the fight, according to the document.

Last November, a federal judge sentenced Bearcomesout to time served. She had already spent 17 months in tribal custody for the crime so she had basically served all of the time that would have been imposed on her under the terms of her plea agreement with the federal government.

But as Bearcomesout was appealing to the 9th Circuit, a right she reserved in her plea, she got into trouble with her probation officer. According to a June 21 petition, she failed to participate in substance abuse testing and substance abuse treatment, and pleaded guilty to driving under the influence in Northern Cheyenne court in March. Alcohol was a factor in the death of Brett Beckman.

As a result, Bearcomesout was arrested on July 24 and she agreed to be held in federal custody while the court considers whether to punish her further. She is due back in court on September 13 to learn her fate.

9th Circuit Court of Appeals Decision:
U.S. v. Bearcomesout (August 17, 2017)