                         United States Court of Appeals

                             FOR THE EIGHTH CIRCUIT


                                 ___________

                                 No. 96-2854
                                 ___________


United States of America,              *
                                       *
             Appellee,                 *
                                       *   Appeal from the United States
     v.                                *   District Court for the
                                       *   District of South Dakota.
L.Z.,                                  *
                                       *
             Appellant.                *

                                 ___________

                     Submitted:      February 11, 1997

                            Filed: April 10, 1997
                                 ___________

Before MAGILL, BEAM, and LOKEN, Circuit Judges.
                           ___________


MAGILL, Circuit Judge.


     L.Z., a sixteen-year-old member of the Yankton Sioux Tribe,
was convicted in the district court1 of two counts of third degree
burglary on an Indian reservation, in violation of 18 U.S.C. § 1153
(1994).     On appeal, L.Z. contends that his conviction violates the
Double Jeopardy Clause of the Fifth Amendment.            We affirm.




        1
       The Honorable Lawrence L. Piersol, United States District
Judge for the District of South Dakota.
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                                      I.


     In   April    and   May   of   1995,   L.Z.   committed   a   series   of
burglaries in and around Wagner, South Dakota.         L.Z. pled guilty in
South Dakota State Court to state criminal charges arising from the
burglaries.    On October 4, 1995, L.Z. was adjudged a delinquent
child and sentenced to confinement in a juvenile facility until he
turned twenty-one years of age.


     Following L.Z.'s conviction in the South Dakota state court,
the United States District Court for the District of South Dakota
held that the Yankton Sioux Reservation had not been diminished.
See Yankton Sioux Tribe v. Southern Mo. Waste Management Dist., 890
F. Supp. 878 (D.S.D. 1995), aff'd, 99 F.3d 1439 (8th Cir. 1996).
Because all of L.Z.'s burglaries had been committed within the
boundaries of the Yankton Sioux Reservation, and because L.Z. was
an enrolled member of the tribe, the South Dakota state conviction
was invalid.      L.Z. was accordingly released from state custody on
April 23, 1996, after having served seven months.


     The United States Attorney's Office for the District of South
Dakota brought federal charges against L.Z. for the same burglaries
that he had been convicted of in state court.              L.Z. entered a
guilty plea conditioned on his right to bring this appeal and was
sentenced to twenty months imprisonment.


                                      II.


     L.Z. argues on appeal that his prosecution in federal court is
prohibited by the Double Jeopardy Clause because he had been
previously prosecuted for the same conduct in state court.                  We
disagree.


                                      -3-
     Dual prosecutions by dual sovereigns for the same conduct does
not usually constitute double jeopardy; as the United States




                               -4-
Supreme Court has stated, "an act denounced as a crime by both
national and state sovereignties is an offense against the peace
and dignity of both and may be punished by each."         United States v.
Lanza, 260 U.S. 377, 382 (1922).


       In United States v. Bartlett, 856 F.2d 1071 (8th Cir. 1988),
we confronted a virtually identical situation as exists in the
instant case.      In Bartlett, a member of an Indian tribe was
invalidly convicted in state court for crimes committed on an
Indian reservation.          Upon the defendant's release from state
custody, the federal government prosecuted him for the same conduct
that   had   resulted   in   his   state    conviction.   In   denying   the
defendant's double jeopardy claim, we stated that:


       It is well settled that a state prosecution is no bar to
       a subsequent federal prosecution absent a showing that
       one sovereign was acting as merely a tool of the other in
       order to avoid the prohibition against double jeopardy.


Id. at 1074 (quotations and citations omitted).           See also United
States v. Garner, 32 F.3d 1305, 1310 (8th Cir. 1994) ("It is well
settled that the double jeopardy clause does not bar a federal
prosecution of a defendant who had been prosecuted for the same
acts in state court."), cert. denied, 115 S. Ct. 1366 (1995).            Only
in circumstances where a "state prosecution was a sham and a cover
for a federal prosecution, and thereby in essential fact another
federal prosecution," do dual prosecutions by dual sovereigns
constitute double jeopardy.        Bartkus v. Illinois, 359 U.S. 121, 124
(1959).


       There is no credible evidence that the State of South Dakota
was acting as a mere tool for the federal government when it
prosecuted L.Z. for burglary.         Rather, South Dakota was acting on
long-established South Dakota Supreme Court precedent that the

                                      -5-
Yankton Sioux Reservation had been diminished and that the state
had jurisdiction over nontribal lands.   See, e.g., State v.




                               -6-
Thompson, 355 N.W.2d 349, 351 (S.D. 1984); State v. Winckler, 260
N.W.2d 356, 360-61 (S.D. 1977); State v. Williamson, 211 N.W.2d
182, 183-84 (S.D. 1973); Wood v. Jameson, 130 N.W.2d 95, 99 (S.D.
1964).    That South Dakota did not, in fact, have jurisdiction over
L.Z.'s crimes does not render its efforts to prosecute him a
"sham."


     The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution does not bar the federal government's
prosecution of L.Z. for the burglaries he committed on the Yankton
Sioux Reservation.    Accordingly, the judgment of the district court
is affirmed.


     A true copy.


            Attest:


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




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