On Oct. 18 the U.S. Supreme Court agreed to hear a Colorado case that raises questions about overlapping power sources of the Court of Indian Offenses and U.S. District Courts. Denezpi v. United States asks the high court if tribal courts are considered federal agencies which would bar prosecution by U.S. District Courts as a case of double jeopardy.
In the case, which originates out of the Ute Mountain Ute Tribe reservation in southwest Colorado, the 10th Circuit Court of Appeals upheld Navajo man Merle Denezpi’s indictment by the U.S. District Court for the District of Colorado for sexual abuse in Indian Country and rejected an earlier motion to dismiss the case under the Fifth Amendment. Now, the nation’s high court will consider issues raised by Denezpi about whether or not the power to prosecute crimes on reservations in the Court of Indian Offenses courts is partially derived from federal power rather than tribal sovereignty.
In July 2017, Ute Mountain Ute tribal authorities arrested Denezpi for sexual assault and charged him with violating the tribe’s assault and battery laws along with provisions in the Code of Federal Regulations on terroristic threats and false imprisonment. Denezpi entered an Alford plea in the Court of Indian Offenses of the Ute Mountain Ute Agency to the assault charge and all other charges were dismissed. He was released on Dec. 6, 2017 for time served in custody.
Six months later, based on the same incident, a federal jury for the U.S. District Court for the District of Colorado indicted Denezpi of sexual abuse in Indian Country despite his motion to dismiss over Fifth Amendment protections.
Courts of Indian Offenses, also known as CFRs, are separate from tribal courts and only five regional courts, including the Ute Mountain Ute court, still exist today. While previous cases have addressed double jeopardy in between tribal courts and federal courts, Denezpi is the first to raise the question between CFRs and federal courts.
In October 2020, a division of the 10th Circuit Court of Appeals rejected Denezpi’s argument that the source of power for the Court of Indian Offenses was both federal and tribal, holding it’s entirely tribal.
Citing the Courts of Indian Appeals 1987 decision in Kiowa Election Board v. Lujan that CFRs “operate under the residual sovereignty of the tribes as well as under the authority of the federal government,” Denzepi argued the power source of CFRs was partially federal, and Fifth Amendment protections apply. The 10th Circuit disagreed, stating in its opinion that Denezpi “misses the point” and “the CFR prosecution of Mr. Denezpi is the Ute Mountain Ute Tribe’s inherent sovereignty.”
Now, the U.S. Supreme Court will consider the overlap between federal district courts and the Court of Indian Offenses.
“This conclusion ignores the overlapping authority and power of the CFR and district courts,” wrote Denzepi about the 10th Circuit decision in his petition for Cert. “The power to prosecute criminal offenses committed on tribal land in the CFR courts and in the federal district courts is the same: the inherent sovereignty of the tribe as expressed through a federal court or agency.”
The case number is 20-7622. Denezpi is represented by New Mexico attorney Theresa Duncan from Duncan Earnest LLC.