(concurring).
I concur in the result reached by the majority.
Although I am bound to follow the older cases1 sanctioning the use of the “same evidence” or “same offense” tests, I nonetheless express adversion to their deficiencies in serving as a constitutional standard against placing a person in double jeopardy for the same criminal conduct. See Mr. Justice Brennan’s concurring opinions in Ashe v. Swenson, 397 U.S. 436, 448, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); and in Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). See also Comment, Double Prosecution by State and Federal Governments: Another Exercise in Federalism, 80 Harv.L.Rev. 1538 (1967). However, in the present case, even using the broader “same transaction” test urged by the defendant there would not be double jeopardy. Here, it is clear that no single court (the federal district court or the tribal court) could have had original jurisdiction of all of the alleged crimes involved. As Mr. Justice Brennan points out in Ashe v. Swenson, supra, 397 U.S. at 453-454, 90 S.Ct. at 1199, 25 L.Ed.2d 469, the fundamental inducement behind the double jeopardy clause is the joinder at one trial of all of the possible charges that flow from a “single criminal act, occurrence, episode or transaction.” Here such joinder would not have been possible. Manslaughter could not be tried by the tribal court, nor could the intoxication charge be brought in the federal district court. Under these circumstances defendant’s reliance on the “same transaction” rule is misplaced. Id. at 453, n. 7, 90 S.Ct. 1189, 25 L.Ed.2d 469.
. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911).