United States of America v. Donald Kills Warrior

United States Court of Appeals
For the Eighth Circuit
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No. 23-3425
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United States of America
Plaintiff - Appellee
v.
Donald Kills Warrior
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota
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Submitted: October 22, 2024
Filed: February 18, 2025
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Before LOKEN, SMITH, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
A grand jury indicted Donald Kills Warrior for failing to register as a sex
offender. See 18 U.S.C. § 2250(a). Kills Warrior moved for his case to be dismissed,
arguing his successive prosecutions in tribal and federal court put him in double

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jeopardy in violation of the Fifth Amendment. The district court1 denied his motion.
In this appeal, Kills Warrior challenges the district court’s denial of his motion to
dismiss on the same double jeopardy issue. We affirm.
I. Background
Donald Kills Warrior is an enrolled member of the Oglala Sioux Tribe. In
2007, Kills Warrior engaged in sexual contact with a child under twelve years old
within the exterior boundaries of the Pine Ridge Reservation and was convicted in
Oglala Sioux Tribal Court for sexual assault. In 2008, Kills Warrior was prosecuted
for the same conduct in federal court. He pled guilty and entered into a plea
agreement, waiving all defenses and the right to appeal any non-jurisdictional issues,
and preserving his right to appeal any district court decision to impose a sentence
above the United States Sentencing Guidelines Manual (Guidelines) range. As a
result of his federal conviction, Kills Warrior was required to register as a sex
offender under the Sex Offense Registration and Notification Act (SORNA).
In 2022, a grand jury indicted Kills Warrior for failing to register as a sex
offender. Kills Warrior moved for dismissal, arguing that his initial federal
conviction for sexual assault was invalid and he therefore had no obligation to
register as a sex offender. He alleged his initial conviction violated his right against
double jeopardy because his tribal court conviction and federal court conviction
were based on the same conduct. See U.S. Const. amend. V. The district court
denied Kills Warrior’s motion to dismiss, concluding no double jeopardy violation
existed. In its denial, the district court relied on the dual-sovereignty doctrine and
the Oglala Sioux Tribe’s inherent authority to prosecute for crimes committed on the
reservation. Kills Warrior pled guilty to failing to register as a sex offender and
entered into a plea agreement, preserving his right to appeal the district court’s
1 The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota, now retired.

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decision on his motion to dismiss. Kills Warrior now appeals and asks this court to
reverse and instruct the district court to vacate his failure to register conviction.
II. Analysis
The government argues that Kills Warrior’s appeal of his failure to register
conviction is not properly before us because he is attempting to vacate his underlying
sexual assault conviction through an improper collateral attack. Kills Warrior’s brief
focuses on his initial sexual assault convictions, not the failure to register as a sex
offender conviction that he now appeals. His main objective on appeal appears to
be to vacating his initial sexual assault conviction. At least one circuit has explained
that “SORNA is similar in structure to the statutes that the Supreme Court has held
do not authorize collateral attacks of predicate convictions . . . .” United States v.
Diaz, 967 F.3d 107, 109–10 (2d Cir. 2020). However, we need not decide whether
SORNA permits a collateral attack2 because, as the government further argues, Kills
Warrior’s jeopardy claim fails under the dual sovereignty principle.
The “dual-sovereignty principle applies where ‘two entities derive their power
to punish from wholly independent sources.’” Denezpi v. United States, 596 U.S.
591, 598 (2022) (quoting Puerto Rico v. Sanchez Valle, 579 U.S. 59, 68 (2016)).
“Indian tribes . . . count as separate sovereigns under the Double Jeopardy Clause,”
when their power to prosecute is not attributable to any delegation of federal
authority. Sanchez Valle, 579 U.S. at 70. As such, a tribal member can be
prosecuted by both the tribe and the federal government for the same conduct. See
id. See also United States v. Wheeler, 435 U.S. 313, 329–30 (1978) (“Since tribal
2 Neither do we resolve whether Kills Warrior waived his double jeopardy
challenge when he pled guilty to the federal offense. Compare United States v.
Herzog, 644 F.2d 713, 716 (8th Cir. 1981) (“Cases from our circuit hold generally
that a guilty plea waives all nonjurisdictional defects . . . and that double jeopardy is
a personal defense and not jurisdictional.”), with United States v. Vaughan, 13 F.3d
1186, 1187–88 (8th Cir. 1994) (explaining Supreme Court precedent dictates a guilty
plea may foreclose a double jeopardy claim unless it is clear from the face of the
record that the court had no power to enter conviction or impose a sentence).

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and federal prosecutions are brought by separate sovereigns, they are not ‘for the
same offence,’ and the Double Jeopardy Clause thus does not bar one when the other
has occurred.”). Because the Oglala Sioux Tribal Court exercised its inherent tribal
authority when it prosecuted Kills Warrior, the federal government’s later
prosecution for the same conduct did not violate the double jeopardy clause.
III. Conclusion
For the foregoing reasons, we affirm the district court’s denial of Kills
Warrior’s motion to dismiss.
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