                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-2796
                                    ___________

United States of America,                *
                                         *
                   Appellant,            *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Andrew Red Bird,                         *
                                         *
                  Appellee.              *
                                    ___________

                         Submitted: November 12, 2001

                                Filed: April 23, 2002
                                     ___________

Before LOKEN, LAY and HEANEY, Circuit Judges.
                          ___________

HEANEY, Circuit Judge.


     The United States of America challenges the district court’s1 order granting
Andrew Red Bird’s motion to suppress a statement obtained in violation of the Sixth
Amendment. We affirm.




      1
       The Honorable Charles B. Kornmann, United State District Court for the
District of South Dakota.
I. Background

       On September 11, 2000, Red Bird was charged by criminal complaint and
arraigned on a rape charge in the Rosebud Sioux Tribal Court. He pled not guilty.
The tribal court appointed an attorney for him, and he was represented in the
arraignment proceedings by a Rosebud Sioux Public Defender, a licensed attorney in
the state of South Dakota who is admitted to practice in the United States District
Court for the District of South Dakota and the United States Court of Appeals for the
Eighth Circuit. The constitution of the Rosebud Sioux Tribe guarantees members the
right to an attorney in tribal court, and the tribe will pay for an attorney if a defendant
is indigent.

       Sometime before November 28, 2000, tribal authorities informed FBI Special
Agent D. Joseph Weir of the rape allegedly committed by Red Bird. The crime of
rape is subject to federal jurisdiction when it is perpetrated by an Indian in Indian
Country. See 18 U.S.C. § 1153 (2000). On November 28, Grace Her Many Horses,
a Rosebud Sioux Tribal Investigator, assisted Weir in locating Red Bird so that Weir
could interview Red Bird concerning the same rape allegation that was pending in
tribal court.2 The district court found that both Weir and Her Many Horses knew
about the tribal rape charge and Red Bird’s legal representation, but neither one
contacted Red Bird's attorney or received the attorney's permission to conduct the
interview.

      When Her Many Horses and Weir located Red Bird, he informed them that his
lawyer had advised him not to make a statement. He claimed, however, that he had
nothing to hide so he would make “one statement and one statement only.” Weir and

      2
       The district court found that “[i]t is undisputed that both the federal
government and the tribe, two sovereigns, were cooperating in the investigation and
charging of the defendant.” United States v. Red Bird, 147 F. Supp. 2d 993, 995
(D.S.D. 2001).

                                           -2-
Her Many Horses interviewed Red Bird at his house, but Weir demanded that none
of Red Bird’s family members be present. Weir read Red Bird his Miranda rights,
allowed Red Bird to read the advice of rights form, and Red Bird signed the waiver
portion of that form. After the agents interviewed Red Bird, they asked him to submit
to buccal swabs for a saliva specimen. Red Bird consented, and a saliva sample was
taken at the Rosebud Comprehensive Health Facility. DNA testing of this specimen
allowed authorities to identify semen found on the victim’s clothing as that of Red
Bird.

      On April 18, 2001, a federal indictment was filed charging Red Bird with four
counts of aggravated sexual abuse. The federal indictment charges the same date,
victim, location and rape as the tribal rape charge.

       On May 15, 2001, Red Bird filed a motion asking the district court to: (1)
suppress his statement made to Weir and Her Many Horses, and (2) suppress the
saliva evidence taken following the interview. Red Bird asserted that his statement
was taken in violation of the Sixth Amendment, or in the alternative, that his
statement was involuntary. He also argued that the saliva sample, which was used to
obtain DNA test results, was inadmissible as “fruit of the poisonous tree.” A hearing
was held before a United States Magistrate Judge3 on May 29, 2001. The magistrate
recommended that Red Bird’s motion be granted in part, finding that his statements
should be suppressed because the interview violated Red Bird’s Sixth Amendment
right to counsel. The magistrate also recommended that the motion be denied in part,
holding that his statement and consent to provide evidence was voluntary and that the
evidence obtained following the statement was admissible under the inevitable
discovery exception to the exclusionary rule.



      3
       The Honorable Mark A. Moreno, United States Magistrate Judge for the
District of South Dakota.

                                         -3-
       Both the government and Red Bird submitted objections to the magistrate’s
Report and Recommendation, but the district court adopted it. The court found that
the federal and tribal charges were identical, that Weir and tribal authorities were
working in tandem, and that Weir knew counsel had been appointed to Red Bird at
the time of the rape charge. Upon making these findings, the district court held that
Red Bird’s Sixth Amendment right to counsel attached when he was arraigned on the
rape charges in tribal court and that the subsequent interview violated Red Bird’s
Sixth Amendment right to counsel. The court, therefore, ordered that Red Bird’s
statements be suppressed in the federal prosecution. The district court also upheld
the magistrate’s decision that the buccal swab/DNA evidence was admissible because
it inevitably would have been discovered by lawful means.

      The government appeals the district court’s order suppressing Red Bird’s
statements.4

II. Discussion

      The first issue we must address is whether we may apply Sixth Amendment
analysis in this case. We note at the outset that it is common for Indian tribal
governments and federal authorities to cooperate in the investigation and prosecution
of crimes committed on reservations. The Bill of Rights and the Fourteenth

      4
        Our court has jurisdiction over this appeal pursuant to 18 U.S.C. § 3731
(2000), which allows the government to appeal a district court’s exclusion of
evidence in a criminal proceeding before a verdict is issued if the United States
attorney certifies that the appeal is not taken for purpose of delay and that the
evidence is substantial proof of a fact material in the proceeding. The portion of the
interview that the government deems most critical is an alleged admission by Red
Bird of having been with the victim but a denial of having had intercourse with her.

      The district court’s holdings that Red Bird’s statement was voluntary and that
the DNA evidence is admissible are not at issue in this appeal.

                                         -4-
Amendment, however, do not apply directly to tribes. See Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 56 (1990). “As separate sovereigns, pre-existing the
Constitution, tribes have historically been regarded as unconstrained by those
constitutional provisions framed specifically as limitations on federal or state
authority.”5 Id. The right to an attorney in tribal court is guaranteed by the Indian
Civil Rights Act (ICRA), 25 U.S.C. §1302(6) (2001), but only at the expense of the
defendant. The Rosebud Sioux Tribal Constitution, however, guarantees the right to
be represented by an attorney, and the tribe provides indigent defendants with a
licensed attorney from the tribal public defender’s office. The Rosebud Sioux,
therefore, have a right to an attorney in tribal court that is similar to the Sixth and
Fourteenth Amendment rights to an attorney in federal and state proceedings.

       Although the Sixth Amendment does not constrain the conduct of tribal
officials, it does apply to the conduct of federal officials. “The line of authority . . .
exempting Indian tribes from Constitutional provisions addressed specifically to State
or Federal Governments . . . does not relieve State and Federal Governments of their
obligations to individual Indians under these provisions.” Santa Clara Pueblo, 436
U.S. at 56 n. 7.

       “Whatever else it may mean, the right to counsel . . . means at least that a
person is entitled to the help of a lawyer at or after the time that judicial proceedings
have been initiated against him ‘whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.’” Brewer v. Williams, 430 U.S.
387, 398 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)). The Sixth
Amendment guarantees the accused the right to rely on counsel as a medium between


      5
       Indian tribes, although limited sovereigns, have retained the right to try and
punish individuals who transgress their laws. This right is not derived from the
federal government but is inherent in the tribes’ sovereignty. See United States v.
Wheeler, 435 U.S. 313, 323 (1978); see also Talton v. Mayes, 163 U.S. 376 (1896).

                                           -5-
him and the authorities. Maine v. Moulton, 474 U.S. 159, 176 (1985). Any statement
about the charged crime that government agents deliberately elicit from a defendant
without counsel present after the defendant has been indicted must be suppressed
under the Sixth Amendment exclusionary rule. Massiah v. United States, 377 U.S.
201, 207 (1964).

       Massiah explains that the period between an indictment and a trial, the period
of “‘thorough-going investigation and preparation,’” is perhaps the most critical
period of the proceedings and a defendant is “‘as much entitled to [counsel’s aid]
during that period as at the trial itself.’” Massiah, 377 U.S. at 205 (quoting Powell v.
Alabama, 287 U.S. 45, 57 (1932)). The Supreme Court has consistently affirmed the
rule announced in Massiah.

      Indeed, after a formal accusation has been made – and a person who has
      previously been just a “suspect” has become an “accused” within the
      meaning of the Sixth Amendment – the constitutional right to the
      assistance of counsel is of such importance that the police may no longer
      employ techniques for eliciting information from an uncounseled
      defendant that might have been entirely proper at an earlier stage of their
      investigation.

Michigan v. Jackson, 475 U.S. 625, 632 (1986).

      The analysis in Massiah applies to the case at hand. At the time that Red Bird
was interviewed, he had been indicted and had been appointed an attorney who was
licensed to serve him in both tribal and federal court. Tribal authorities informed
Agent Weir of the tribal indictment and the possible violation of federal law. Agent
Weir then worked in tandem with the tribal criminal investigator to deliberately elicit
information from Red Bird, knowing that Red Bird had been indicted in an
adversarial proceeding for the same charge and that Red Bird was represented by an
attorney on that charge. This is not a case where the federal agent was unaware of the


                                          -6-
tribal charge or unaware of the defendant’s representation by counsel. Rather, it is
a case where two sovereigns worked together to investigate conduct that violates the
laws of both.6

       We find that as a result of the way that tribal and federal authorities cooperated
in connection with these charges, Red Bird’s indictment in tribal court inherently led
to his prosecution in federal court. Considering the close working relationship
between tribal and federal authorities in this case, to deny Red Bird the right to
counsel after the tribal indictment would deprive him of an attorney at one of the most
critical stages of the proceedings against him. Therefore, we hold that Red Bird is
entitled to the protections of the Sixth Amendment.

       Next, we consider the government’s argument that Red Bird’s Sixth
Amendment right did not attach. The government first asserts that the tribal and
federal criminal complaints do not charge the same offense. The Sixth Amendment
right to counsel is offense specific. McNeil v. Wisconsin, 501 U.S. 171, 175 (1991).
The government maintains that the federal and tribal indictments for the same rape
charge two separate offenses because the rape violated the laws of two sovereigns.


      6
        We note that Indian tribes retain sovereignty of a “unique and limited
character.” United States v. Wheeler, 435 U.S. at 323 (“Indian tribes still possess
those aspects of sovereignty not withdrawn by treaty or statute, or by implication as
a necessary result of their dependant status.”). The Major Crimes Act requires federal
jurisdiction over this offense, see 18 U.S.C. § 1153, and the Supreme Court has not
decided whether this jurisdiction is exclusive. Duro v. Reina, 495 U.S. 676, 680 n.
1 (1990) (“It remains an open question whether jurisdiction under § 1153 over crimes
committed by Indian tribe members is exclusive of tribal jurisdiction.”)(citation
omitted); Cf. Wetsit v. Stafne, 44 F.3d 823, 825 (9th Cir. 1995) (holding that tribes
have concurrent jurisdiction to punish acts that also constitute an offense under the
Major Crimes Act). We are not asked to decide whether the tribal court has
jurisdiction over the rape allegedly committed by Red Bird, and we do not decide this
issue.

                                          -7-
The dual sovereignty exception to double jeopardy provides that when a single act
violates the “peace and dignity” of two sovereigns by violating the laws of each
sovereign, two offenses have been committed. Heath v. Alabama, 474 U.S. 82, 88
(1985) (citation omitted). We do not believe that it is appropriate to fully rely on
double jeopardy analysis here. As stated, the tribal charge in this case initiated the
federal investigation and proceedings, and the tribe and the U.S. worked in tandem
to investigate the rape. Furthermore, tribal sovereignty is “unique and limited” in
character. United States v. Wheeler, 435 U.S. at 323.

       To determine whether the tribal and federal complaints charge the same
offense, we look to Texas v. Cobb, 532 U.S. 162 (2001). In that case, the Supreme
Court held that under the Sixth Amendment “where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.” Id. at 173 (quoting Blockburger
v. United States, 284 U.S. 299, 304 (1932)). The district court found, and we agree,
that the tribal rape charge has “identical essential elements when compared with the
later federal charges filed.” United States v. Red Bird, 146 F. Supp. 2d 993, 999
(D.S.D. 2001). Therefore, we hold that pursuant to the test set forth in Texas v. Cobb,
the federal and tribal complaints charge the same offense for Sixth Amendment
purposes.

        The government also asserts that Red Bird’s right did not attach because the
tribal arraignment was not an adversarial judicial proceeding. The Sixth Amendment
right to counsel attaches at the commencement of adversarial proceedings against a
defendant. Kirby v. Illinois, 406 U.S. 682, 688 (1972). The government argues that
Red Bird’s arraignment in the Rosebud Tribal Court did not constitute an adversarial
judicial proceeding, thus his Sixth Amendment right did not attach. In making this
argument, the government relies on the Sixth Circuit case of United States v. Doherty,
in which the court held that federal questioning of a defendant, who had been indicted

                                         -8-
in the Hannahville Indian Community Tribal Court in the absence of counsel, did not
constitute a violation of the Sixth Amendment. 126 F.3d 769 (6th Cir. 1997). We
agree with the district court that the Doherty case is distinguishable from this case in
several ways. First, Doherty had made an appearance in tribal court, but unlike Red
Bird he did not undergo a full arraignment proceeding.7 Second, the record in
Doherty does not reveal whether Doherty had actually employed an attorney at the
time federal investigators approached him, and Doherty had no “tribal right” to an
attorney. Third, and most importantly, Doherty relied on the assumption that the
proceedings in the Hannahville Tribal Court were non-adversarial in nature.

       Unlike many tribes, the Rosebud Sioux Tribe has developed an adversarial
criminal justice system. As the district court noted, proceedings in the Rosebud
judicial system do not operate as family gatherings and counseling sessions. Cf.
Doherty, 126 F.3d at 780 (noting that many tribes have adopted a non-adjudicative
system of justice). Rather, they are “‘adversary judicial criminal proceedings’ as that
phrase is used in United States v. Gouevia, 467 U.S. 180, 188 (1984).” Red Bird, 146
F. Supp.2d at 998. The Rosebud Sioux Tribe is unique among tribes in that it
provides a licensed attorney to represent indigent defendants in tribal court. Id. at
997. The tribe formally charged Red Bird by criminal complaint, with his attorney
present, and he was required to enter a plea to that charge. If convicted, Red Bird
could serve a term of imprisonment of up to one year.8 We agree with the district
court that Red Bird’s arraignment constituted an adversarial judicial proceeding and
that his Sixth Amendment right to counsel attached at that proceeding.




      7
      The arraignment was continued to allow Doherty to contact an attorney.
Doherty, 126 F.3d at 772.
      8
       U.S. law prohibits tribal courts from imposing a term of imprisonment in
excess of one year and a fine greater than $5000 or both. 25 U.S.C. § 1302(7) (2001).

                                          -9-
       Finally, the government argues that even if Red Bird had a Sixth Amendment
right to counsel at the time of the interview, his statements should not be excluded
because Michigan v. Jackson, 475 U.S. 625 (1986), should be limited to cases where
a defendant who has asserted his right to counsel is subsequently subjected to
custodial interrogation. Jackson, states that “[i]f police initiate interrogation after a
defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel,
any waiver of the defendant’s right to counsel for that police-initiated interrogation
is invalid.” 475 U.S. 625, 636 (1986). The government cites no authority for the
proposition that Jackson applies only to custodial interrogations, and indeed, the
application of the Sixth Amendment is not dependant on defendant’s custodial status.
See, e.g., Massiah, 377 U.S. 201 (applying the Sixth Amendment to non-custodial
questioning of defendant by an informant after defendant had been indicted). Rather,
the government relies on the concurrence in Texas v. Cobb in which three justices
express doubts about the underlying theory in Jackson. See Texas v. Cobb, 532 U.S.
at 174 (J. Kennedy, concurring). Until such time as the full Court overrules Michigan
v. Jackson, we are bound to apply it. Therefore, we find that Red Bird’s waiver of his
right to counsel was invalid.

III. Conclusion

      For the reasons set forth above, we affirm the decision of the district court to

suppress Red Bird’s statement.


      A true copy.

             Attest:

                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.


                                          -10-
