On Tuesday, a Colorado case that asks about the overlap between Federal Courts and the Court of Indian Offenses goes to oral arguments in front of the U.S. Supreme Court. Denezpi v. United States asks the high court if certain tribal courts are considered federal agencies which would bar prosecution by the U.S. District Courts as a case of double jeopardy.
Merle Denezpi was arrested in 2017 by Ute Mountain Ute Tribe authorities at the tribe’s reservation in southwest Colorado.
Two days earlier, a woman, identified as V.Y. in court documents, walked from the Towaoc home of Denezpi’s girlfriend to a nearby casino. She told authorities that she drove up from Shiprock, New Mexico with Denezpi before he barricaded her in the home, raped her and threatened her if she left the house. A Sexual Assault Nurse Exam corroborated her report and, after hiding from authorities for 13 hours in a neighboring yard, Denezpi gave inconsistent accounts of the encounter.
Denezpi was charged in the Court of Indian Offenses of the Ute Mountain Ute Agency with assault and battery under Ute Mountain Ute code and with terrorist threats and false imprisonment under the Court of Indian Offenses. He entered an Alford plea to the assault charge, was sentenced by the Court of Indian Offenses to time served (nine months), and released.
Six months later, a federal grand jury indicted Denezpi on one count of aggravated sexual abuse in Indian Country over the same incident. The court overruled a motion to dismiss the indictment based on the Fifth Amendment and double jeopardy. A jury found Denezpi guilty and he was sentenced to 360 months in prison with 10 years of supervised release.
Arms of the Federal Government
In October 2020, the 10th Circuit Court of Appeals rejected two arguments from Denezpi appealing his federal conviction. Most importantly, the 10th Circuit disagreed with Denezpi’s interpretation of the relationship between federal courts and Courts of Indian Offenses, a type of reservation court that’s mostly been replaced by tribal courts; only five Courts of Indian Offenses, also called CFR courts, still exist today. The circuit ruled that CFRs and federal governments are dual sovereigns, side stepping the Fifth Amendment.
Most tribes in the U.S. use tribal courts to enforce their internal laws. The 1934 Indian Reorganization Act increased the authority delegated to tribes to govern themselves, paving the way for the creation of tribal courts which replaced CFRs, first created by the Department of the Interior in 1882, for many tribes.
While CFRs are not the same as tribal courts, they fill a similar role as a forum for tribes to enforce internal laws. The CFRs are operated by the Bureau of Indian affairs and must enforce the Code of Federal Regulations (hence the acronym CFR) and, if a tribe chooses, tribal criminal ordinances. The BIA appoints judges and prosecutors to the CFRs but tribes are involved in the confirmation process, court administration and appointment contracts. Like tribal courts, CFRs have lower sentence caps than federal courts.
In 1978, the U.S. Supreme Court ruled that tribal courts and federal courts are dual sovereigns that can bring criminal charges over the same incident without violating the Fifth Amendment. In U.S. v. Wheeler, the high court held that the source of power to prosecute crimes in tribal courts comes from tribal sovereignty, not an aspect of sovereignty of the federal government delegated by Congress.
The court will now consider the same question on CFR courts after Denezpi was granted certiorari last year.
Denezpi argues that the Court of Indian Offenses of the Ute Mountain Ute Agency derives its power from the federal government, meaning his prosecution in U.S. district court for the same incident was double jeopardy. He argues that the 10th Circuit’s interpretation that CFRs and federal courts are dual sovereigns was incorrect. Dual sovereignty requires two elements of each government: the power to enact a criminal law and the power to enforce or prosecute criminal law.
Denezpi argues that CFRs derive their power from the federal government through the Bureau of Indian Affairs. He points to the history of CFRs, which were first created to impose federal law onto tribes in the late 1800s. Historically, the CFRs prosecuted and criminalized tribal customs, “their purpose was to undermine rather than promote traditional tribal self-government,” reads Denezpi’s brief to the Supreme Court. Today, Denezpi argues, CFR courts are still at the behest of the federal government since they are nested within the BIA. CFR judges and prosecutors are appointed by the BIA and prosecutions are “commenced pursuant to federal prerogatives, reflecting federal policies and priorities.”
Conversely, the federal government argues CFRs are separate from federal courts. In its brief to the Supreme Court, the U.S. dismissed Denezpi’s historical references to CFRs, writing “they differed markedly from the modern Courts of Indian Offenses at issue here.” The federal government argues that CFRs act as a stage for tribes to impose their own ordinances, even if they are operated by the federal government, meaning they come from a separate arm of power than federal courts.
In Practice
The case attracted a slew of amicus briefs, mostly in support of the U.S. and the strengthening of the CFRs.
Three tribes that still use CFRs — the Ute Mountain Ute Tribe, the Eastern Shawnee Tribe of Oklahoma and the Otoe-Missouria Tribe of Indians — ask the Supreme Court to uphold the federal conviction. In the brief, the Ute Mountain Ute Tribe explained that it cannot consistently rely on the federal government to prosecute and protect its citizens, and that it leans on the CFR to do so. While the tribes underlined that CFRs have complicated histories and do not act uniformly across the country, they wrote that they consider modern CFRs as part of the tribal government, applying tribal laws and codes and using federal and state law to fill in gaps. The brief adds that any CFR court employees paid by the BIA “spend the bulk of their time and resources enforcing Tribal law,” and that the tribe often funds key court services directly. The brief adds that the Ute Mountain Ute consider the CFR “for all practical purposes, functions as the Tribe’s own prosecuting mechanism,” and deeming it a federal court, “would make it dramatically more difficult to protect the lives and property of people living and working on the reservation.”
The National Indigenous Women’s Resource Center and National Congress of American Indians also support the U.S. Ruling in favor of Denezpi, they argue, “would impede the ability of Tribal Nations to bring charges for crimes of sexual assault and domestic violence—threatening the already tenuous safety of Native women and children.”
A group of former chief U.S. attorneys for a range of districts added in an amicus brief in support of the U.S. that in their formal leadership roles, “they did not prosecute or supervise prosecutions in any Courts of Indian Offenses sitting within the geographic boundaries of their respective federal districts. Nor, to their knowledge, did any Assistant United States Attorney serving under them.” The brief added that all former attorneys considered CFRs as tribal courts associated with separate sovereign governments.
The Federal Indian Law Scholars and Historians as well as a coalition of states including Colorado, Nebraska, Nevada and Utah filed briefs in support of the federal government as well.
The only brief in support of Denezpi came from the National Association of Criminal Defense Lawyers. The NACDL urged the high court to rule in favor of Denezpi, arguing that “that federal authority controls both the jurisdiction of, and the conduct of prosecutions in, the CFR courts [meaning] that those courts [CFRs] are effectively tools of federal prosecuting authorities.”