In a ruling that will have major implications for tribal justice, the Supreme Court has ruled that Merle Denezpi’s double-jeopardy rights under the Fifth Amendment were not violated by a second, federal court prosecution following his conviction and sentencing by a Court of Indian Offenses for the same incident, SCOTUSBlog reported.
Denezpi was accused of sexually assaulting a woman at the Ute Mountain Ute Reservation in July 2017. Both Denezpi and his victim are citizens of the Navajo Nation.
The Ute Mountain Ute Tribe does not operate its own courts, so Denezpi’s case was handled by a Court of Indian Offenses, the Southwest Region CFR Court (named for the Code of Federal Regulations). Denezpi agreed to a plea for assault and battery, a charge defined by Ute criminal code, and was sentenced to time served, just under 5 months.
Six months later, Denezpi was charged and convicted in federal court for aggravated sexual abuse and sentenced to 30 years. Denezpi’s legal team appealed on double-jeopardy grounds and then appealed the denial, where the 9th Circuit denied him.
On Monday, the Supreme Court agreed in a 6-3 opinion that the double jeopardy clause does not bar successive prosecutions of distinct offenses from a single act, hinging on the fact that Denezpi was first prosecuted under the distinct criminal code of the Ute Mountain Ute Tribe, and then under a separate aggravated sexual abuse offense under federal criminal statute.
Justice Neil Gorsuch wrote the dissent. Gorsuch, who spent more than 10 years as a judge on the Tenth Circuit, has the most significant background in tribal affairs currently on the Supreme Court. Gorsuch argued in his dissent, joined for two of three arguments by Justices Elena Kagan and Sonia Sotomayor, that the Court of Indian Offenses is not truly a tribal court, but an operation by the federal govt through the Department of the Interior.
Gorsuch drew a comparison between the federally funded and administered CFR courts and the courts of Puerto Rico.
“If the courts of Puerto Rico are properly classified as federal under our case law, it defies the imagination to think administrative tribunals hatched by the Department of the Interior could be treated differently,” Gorsuch wrote.
Understanding American Indian Policy
In January, Amanda White Eagle of the American Indian Sovereignty Project filed an Amici Curiae brief on behalf of a collective of federal Indian law scholars and historians. These scholars argued that, ultimately, the CFR courts derived their prosecutorial power from the tribes they serve, not the U.S. Government, despite their origins.
“In practice,” the brief stated, “these courts largely served as extensions of tribal communities, with Native Judges—often elected by tribal members—enforcing tribal law with little regard to the federal regulations.”
This tribal control was then strengthened by the “Indian New Deal,” or the Indian Reorganization Act of 1934. The experts filing argued that ultimately, CFR courts are functionally tribal courts, just tribal courts that receive funding and operational support from the federal government.
Originally, following a murder case in 1884, in Ex parte Crow Dog the Supreme Court unanimously ruled that Congress prohibited any federal prosecution of crimes solely involving Native Americans. The CFR courts continued operating during this limbo, accepted as instruments of the tribes rather than federal courts.
In response, in 1885, Congress passed the Major Crimes Act, which clarified federal jurisdiction over serious crimes and allowed for prosecution at both the tribal court level and federal court level explicitly, acknowledging their separate sovereignty—a decision and history key to the Supreme Court’s decision in Denezpi.
This decision comes as more are advocating for an expansion of power within these tribal courts.
The National Indigenous Women’s Research Center, a non-profit run by Native women from Tribes throughout the country, also filed a brief of amici curiae in the case along with the National Congress of American Indians, which argued that considering CFR courts as under federal sovereign authority would hurt Tribal Nations’ already-limited ability to bring serious charges for crimes of sexual assault and domestic violence, particularly during a crisis of violence against Native women.
In May, Amnesty International called on the U.S. government to expand tribal sovereignty when it comes to prosecuting violent crimes, including broadening Native nations’ sentencing power, the Guardian reported. Current sentencing restrictions are why we see misdemeanor level sentences for violent crimes, like the 140 day sentence Denezpi was originally handed down for his assault charges.
Even the Tribal Law and Order Act (TLOA) of 2010, which expanded sentencing power, only allowed tribal courts to hand down sentences of up to three years. Prior to the TLOA, tribal courts could sentence criminals, even for violent crimes, only up to one year of imprisonment. Before 1986 it was six months.
What’s Next?
The Supreme Court will issue an opinion in another case involving tribal sovereignty in criminal prosecutions this summer. Justices heard arguments in Oklahoma v. Castro-Huerta in April, a case which will relitigate the State of Oklahoma’s ability to prosecute crimes involving Native Americans in Indian country.
Victor Manuel Casto-Huerta was convicted and sentenced to 35 years in prison in Oklahoma court for child neglect against a Cherokee child on the Cherokee reservation. Oklahoma is arguing that it shares criminal jurisdiction in any cases involving non-Indian perpetrators, even if the crime took place on a reservation, the Oklahoman reported.
The Supreme Court is currently considering the case, though they rejected Oklahmoa’s request to overturn McGirt v. Oklahoma, a 2020 decision where the Court upheld the sovereignty of tribes over crimes committed by citizens within historical land boundaries, refuting Oklahoma’s claim to jurisdiction and deciding that the state had wrongly prosecuted a Native man who committed crimes within the boundaries of Muscogee (Creek) land.
Audrey Nielsen is a TCR Justice Reporting intern.