The U.S. Supreme Court released its opinion on a Colorado case, Denezpi v. U.S., which clarified that criminal charges can be brought by federal prosecutors and Courts of Indian Offenses, or CFRs, without violating the Fifth Amendment. The decision clears up a legal gray area for the handful of tribes that rely on CFR courts to enforce tribal law.
A 6-3 majority of the court on June 13 found the double jeopardy clause of the U.S. Constitution doesn’t bar successive prosecutions of different offenses that arise from the same incident, even if the prosecutions are brought in courts with the same source of authority.
Attorneys that practice American Indian law say the decision reaffirms key legal concepts around tribal sovereignty and will help tribal governments protect their communities.
The case arose after Merle Denezpi, a member of the Navajo Nation, was accused in 2017 of holding a woman hostage and repeatedly raping her at a house in Towaoc, Colorado on the Ute Mountain Ute reservation.
Denezpi was charged in the Ute Mountain Ute CFR with assault and battery under Ute Mountain Ute code. He entered an Alford plea and was sentenced to time served, nine months, and released. Six months later, federal prosecutors charged him with one count of sexual abuse in Indian Country, which a jury found him guilty of, and Denezpi was sentenced to 360 months in prison with 10 years of supervised release.
In October 2020, the 10th Circuit Court of Appeals rejected arguments from Denezpi that his subsequent federal prosecution was double jeopardy. The 10th Circuit disagreed with Denezpi’s interpretation of the relationship between federal courts and CFRs, finding the two were dual sovereigns and therefore the charges were different offenses.
Appealing to the U.S. Supreme Court, Denezpi argued that the Ute Mountain Ute CFR derives its power from the federal government and that the 10th Circuit’s ruling was incorrect. He also argued that the CFR’s power comes from the federal government via the Bureau of Indian Affairs, which is responsible for contracting some of the prosecutors, public defenders and judges that staff CFRs.
Denezpi v. U.S.
In its opinion, the U.S. Supreme Court didn’t address Denezpi’s argument over CFRs’ source of power. It didn’t matter what the source of power in the prosecuting court was, the court majority found, since the charges against Denezpi were based on laws created by distinct sovereigns, the U.S. and the Ute Mountain Ute.
“By its terms, the [Double Jeopardy] Clause prohibits separate prosecutions for the same offense; it does not bar successive prosecutions by the same sovereign,” wrote Justice Amy Coney Barrett, delivering the majority opinion. “So even assuming that petitioner’s first prosecutor exercised federal rather than tribal power, the second prosecution did not violate the Constitution’s guarantee against double jeopardy.” Barrett was joined by Justices John Roberts, Clarence Thomas, Stephen Breyer, Samuel Alito and Brett Kavanagh.
Monday’s opinion was the first big case authored by Barrett over Indian law. It affirmed many tenets of tribal sovereignty, attorneys say, and gave a first glimpse into where Barrett, as the Supreme Court’s newest justice, stands on tribal legal matters.
Patrick Daugherty, a partner at Van Ness Feldman who works with tribes and tribal business across the country on a range of matters, said Monday’s opinion was promising as an advocate for tribal sovereignty. “It was encouraging for me to see Justice Barrett’s first Supreme Court opinion on an Indian law question reaffirm some basic principles of federal Indian law,” said Daugherty. “Primarily that tribal sovereignty predates the Constitution and exists separately from the power of the federal government.”
Peter Ortego, Director of the Ute Mountain Ute Department of Justice and the tribe’s general counsel, added that Barrett’s position on tribal supremacy aligned closely with the Ute Mountain Ute’s position. “I thought her recognition of that issue was exactly the way we looked at it,” he said. “It really doesn’t matter who’s paying, it really doesn’t matter who’s responsible for ensuring that the tribe has the court and federal responsibility, what really matters is that its purpose is to protect this community and to implement the tribe’s laws that it established as a sovereign.”
A minority of the court, Justices Neil Gorsuch, Sonia Sotomayor and Elena Kagan, disagreed with the holding.
Delivering the dissent, Gorsuch expressed concern over the use of the dual sovereignty doctrine to determine double jeopardy. “Same defendant, same crime, same prosecuting authority. Yet according to the Court, the Double Jeopardy Clause has nothing to say about this case,” wrote Gorsuch. He cast doubt on the dual sovereignty doctrine’s application to the Fifth Amendment, writing that, in his mind, “that doctrine has no place in our constitutional order.” Singling out the doctrine, Gorsuch warned that at its extreme, prosecutors might bring subsequent charges, using the first trial as a “dress rehearsal” for the next prosecution.
The dissent added that even under the dual sovereignty doctrine, the justices weren’t convinced that Denezpi’s case met the requirements. The two conditions of dual sovereignty in double jeopardy cases require first that prosecutions are brought under the laws of two sovereigns and second that the “power to punish” the offenses is from independent sources. “Here, neither condition is satisfied,” wrote Gorsuch.
The charges brought against Denezpi in the CFR were “federal regulations that assimilated tribal law into federal law,” Gorsuch found. On the second condition, Gorsuch criticized the majority’s reliance on the U.S. Supreme Court’s 1978 decision in United States v. Wheeler, which held that the Fifth Amendment didn’t bar subsequent prosecutions of tribal offenses in tribal courts. Wheeler was distinctly different from this case, Gorsuch wrote. “It did not involve a federal regulation that assimilates approved tribal ordinances. What is more, the court in Wheeler expressly noted and specifically reserved the question presented here. It stated that it ‘need not decide’ whether its holding applied to the Court of Indian Offense and it reserved that question in part because it acknowledged that, unlike tribal courts, the Court of Indian Offenses may be an ‘arm of the Federal Government.’”
Troy Eid, a shareholder and co-chair of Greenberg Traurig’s American Indian Law Practice Group who served as the U.S. Attorney for the District of Colorado from 2006 through 2009, said Gorsuch’s dissent raised concerns over the rights of criminal defendants. “The court faced an issue of criminal defendants rights and they came out on the side of the tribe as opposed to the defendant,” said Eid.
“If taken to its extreme, the Court’s reasoning could seemingly allow a State to punish an individual twice for identical offenses, so long as one is proscribed by state law and the other by federal law,” Gorsuch added in the dissent.
Denezpi v. U.S. provided a concrete answer to matters that federal and Ute Mountain Ute prosecutors haven’t been sure of.
Eid explained that during his time as district attorney, his office wasn’t sure if it could bring charges after the Ute Mountain Ute CFR did so. “The U.S. Supreme Court had never addressed it, there hadn’t been a case in the 10th Circuit, we didn’t know for sure what the law was and so we were always concerned that this sort of legal challenge would happen,” said Eid. CFRs can only impose limited sentences, he said, so his office usually brought charges in cases when it felt the defendant was a danger to the community, like cases involving violent crimes or serial offenders.
The U.S. Supreme Court’s decision, however, has left some questions open. For CFRs that enforce tribal law that includes federal regulation codes, bringing tribal charges and federal charges could run afoul of the Fifth Amendment, according to Eid. “If you read the opinion closely, it sounds like if you used federal law, then you would have double jeopardy.”
Daugherty believes that Gorsuch’s dissent could also be a road map for future Fifth Amendment challenges in cases like Denezpi’s. Future defendants could raise arguments if they’re charged with tribal code that assimilates federal code, said Daugherty. Or, Gorsuch points out “a separation of powers argument that could be raised about having the same entity, the federal government, appoint the prosecutor, the judge and be the jailer,” said Daugherty. “Given the roadmap laid out in Gorsuch’s dissent, I would be surprised if this was the last challenge to the authority of the CFR courts that we’ll see.”
‘A Curious Regime’
In his dissent, Gorsuch wrote that “by anyone’s account, the Court of Indian Offenses is a curious regime.” Today, only five CFRs still exist, with most having been replaced by tribal courts. But for the handful of federally recognized tribes that still use CFRs, including the Ute Mountain Ute in southern Colorado, they play a key role in enforcing tribal law and keeping the community safe.
CFR history in many ways follows the morphing policy the U.S. government has applied to Native Americans and tribal sovereignty starting in the 1800s.
CFRs were created in 1882 at a time when the federal government sought to impose its laws on tribes. They were originally tasked with enforcing the Code of Federal Regulations (hence the acronym CFR) which, among other things, criminalized religious and cultural practices of Native American tribes. CFRs were created by the Department of the Interior’s Bureau of Indian Affairs, which still is responsible for funding and executing some parts of existing courts.
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.
Both tribal courts and CFRs are limited on who they can bring charges against and what punishments they can impose. With a few exceptions, both courts can only bring charges against federally recognized members of an Indian tribe. They also have limits on the maximum sentence given to people found in violation of tribal law. In most cases, defendants can receive a maximum of one year incarceration, an amount in line with typical misdemeanor-level sentences.
Tribes that still use CFRs say that federal funding for their justice systems ensures that the courts run efficiently and serve their communities.
Eid, who also serves as a part-time judge for the Ute Mountain Ute CFR, was part of the team at Greenberg Traurig that represented the Ute Mountain Ute and several other tribes that still use CFRs as amicus curiae to Denezpi v. U.S. In a brief in support of federal prosecutors, the tribes explained that they view CFRs as a mechanism to enforce tribal law but still rely on the federal funding provided to the courts.
While the BIA is responsible for providing CFR judges, prosecutors and some law enforcement, tribes also fund parts of the justice system directly. “It’s become a hybrid court over the years as all these CFR courts have become,” said Eid.
Ortego explained that the Ute Mountain Ute used to have a tribal court, but chose to retrocede its judicial system back to a CFR after tribe leaders felt the court wasn’t operating as efficiently as it could under the BIA. “But nonetheless, it is up to the tribe to opt to have its court run that way,” said Ortego. “But because there’s this federal nexus, even with the tribe having that kind of control, the tribe’s always been really incumbent on the United States to pursue these cases.”
On the ground, Ortego and Eid say the U.S. Supreme Court’s decision will help protect the Ute Mountain Ute community. The Ute Mountain Ute reservation covers more than 600,000 acres in southwest Colorado and is home to 1,700 people, most of them tribal members.
Ortego explained that in the past when federal attorneys have been unwilling to bring subsequent prosecution out of fear of double jeopardy, Ute Mountain Ute authorities haven’t been able to apprehend people suspected of committing serious criminal offenses until federal prosecutors were ready to bring charges. That can take weeks or even months, he said. In the past, it meant that “the tribal members themselves were getting frustrated. Their perception of whether justice was being carried out was very poor and so they had a lack of confidence in the judicial system on the reservation.”
While Monday’s decision only applies to a handful of tribes, Eid said, the case’s impact is enormous for those communities. “I think it’s helpful that the court, 6-3, voted to protect local communities that said that if we don’t have these tools, we’re going to have more violent crime and we won’t be able to help our citizens as much,” he said. “I actually think that’s the most important thing here even if that doesn’t necessarily apply to many communities. It’s a life or death issue. At Ute Mountain, it’s life or death. So in that sense it’s very important on the ground.”
Attorneys representing Denezpi did not return Law Week’s request for comment.