Denezpi v. United States

Issues

Does the Double Jeopardy Clause bar the prosecution of a crime in a federal district court when the defendant was previously convicted for the same incident in a Court of Indian Offenses?

Oral argument:

February 22, 2022

Court below:

United States Court of Appeals for the Tenth Circuit

This case asks the Supreme Court to decide whether prosecution of the same conduct, first in a Court of Indian Offenses (“CFR court”), a federally-constituted Article I trial court with jurisdiction over cases arising on Indian reservations, and then in a federal court, is permissible under the dual sovereignty exception to the Double Jeopardy Clause of the Fifth Amendment. Petitioner Merle Denezpi argues that his prosecution in a federal district court following his conviction in the Ute Mountain Ute CFR court violates the Double Jeopardy Clause of the Fifth Amendment, which prohibits successive prosecutions of the same offense, because the CFR court derives some of its judicial power from the federal sovereignty of the United States government. Respondent the United States counters that Denezpi’s crime falls within the dual sovereignty exception to the Double Jeopardy Clause because the Ute Mountain Ute CFR court is an extension of tribal, not federal, sovereignty and, as Denezpi’s conduct violated both tribal and federal law, he can be prosecuted successively under each law by the two separate sovereigns. The outcome of this case has implications for tribal sovereignty and public safety in tribal communities.

Questions as Framed for the Court by the Parties

Whether the Court of Indian Offenses of Ute Mountain Ute Agency is a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States district court for a crime arising out of the same incident.

Facts

In the 19th century, in response to the growing federal policy of assimilating Native American tribes into Anglo-American society, Congress created special Article I courts across the country known as Courts of Indian Offenses. United States v. Denezpi, at 782. These courts, now known as Code of Federal Regulation courts (“CFR courts”), provided processes and apparatuses for the application of federal law on Native American reservations. Id. After the Indian Reorganization Act of 1934, federal policy regarding United States and tribal relations changed to focus on increasing tribal sovereignty, particularly as it related to encouraging tribes to develop tribal law and their own tribal courts to replace the CFR courts. Id. The vast majority of tribes have since replaced their CFR courts with tribal courts. Id. Currently, only five regional CFR courts exist across the country, including the Southwest Region CFR Court which has jurisdiction over the Ute Mountain Ute Tribe. Id. Notably, CFR courts today exist to administer the law only on reservations where tribal courts have not been established but where it is the tribes, not the states, that have jurisdiction over their members. Id. Thus, though they are not tribal courts, CFR courts function very similarly to tribal courts by providing mechanisms for tribes lacking their own courts to exercise their jurisdiction and enforce tribal law. Id.

On July 20, 2017, Merle Denezpi, an enrolled citizen of the Navajo Nation, was arrested by tribal law enforcement while on the Ute Mountain Ute Reservation and charged in the Court of Indian Offenses of the Ute Mountain Ute Agency (“CFR court”) with the tribal offense of assault and battery under 6 Ute Mountain Ute Code § 2 and the federal offenses of terroristic threats and false imprisonment under 25 C.F.R. §§ 11.402 and 11.404. Id. at 779–80. The two federal law charges were dropped, leaving Denezpi charged only with the tribal offense of assault, to which he entered an Alford plea. Id. On December 6, 2017, Denezpi was released from custody for time served. Id.

Six months after his conviction, Denezpi was indicted in the United States District Court for the District of Colorado for aggravated sexual abuse in Indian country in violation of 18 U.S.C. §§ 2241(a)(1)-(2) & 1153(a). Id. at 779. Denezpi moved to have the case dismissed, claiming that the second prosecution violated the Double Jeopardy Clause of the Fifth Amendment. Id. at 780. The district court denied his motion. Id. A jury convicted Denezpi of one count of aggravated sexual abuse in Indian country and sentenced him to 360 months in prison and ten years of supervised release. Id. at 781.

Denezpi appealed the denial of his motion to dismiss on double jeopardy grounds. Id. On appeal, the United States Court of Appeals for the Tenth Circuit found that the ultimate authority underlying Denezpi’s prosecution in the CFR court derived from the Ute Mountain Ute Tribe’s inherent tribal sovereignty—a sovereignty that is distinct from the federal sovereignty of the United States. Id. at 783. As federal sovereignty underpinned Denezpi’s second prosecution in the federal district court, the Tenth Circuit affirmed Denezpi’s federal conviction, finding that it did not violate the Constitution’s prohibition on double jeopardy. Id.

Denezpi petitioned the Supreme Court of the United States for a writ of certiorari. Brief for the Petitioner, Merle Denezpi at 1. The Supreme Court granted certiorari on October 18, 2021. Id.

Analysis

APPLICATION OF THE DOUBLE JEOPARDY CLAUSE AND THE DUAL SOVEREIGNTY DOCTRINE

Petitioner Merle Denezpi argues that the federal district court prosecuted him for the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment. Brief for Petitioner, Merle Denezpi at 22. Denezpi points out that the Double Jeopardy Clause prohibits multiple prosecutions “for the same offence” except where the doctrine of dual sovereignty applies. Id. at 15. Denezpi explains that, under this doctrine, the same conduct can be prosecuted twice only when it violates the distinct laws of two separate sovereigns, and each sovereign independently prosecutes those violations. Id. at 15–16. Denezpi emphasizes, however, that both elements of prosecutorial power—the authority to enact a criminal law and the ability to enforce it—must be derived from separate sovereigns for the exception to apply. Id. Here, Denezpi maintains that only the first element is satisfied: the incident in question constitutes criminal conduct under two sovereigns’ laws because it violates both tribal and federal law. Id. at 14, 17. Denezpi asserts, however, that the second element fails because his successive prosecutions, first in a CFR court, and then in federal district court, are both exercises of federal sovereignty. Id. at 14, 17. Denezpi reasons that because he is not being prosecuted by two separate sovereigns, but solely by the federal government, the doctrine of dual sovereignty does not apply. Id. at 17. Thus, Denezpi concludes that the government’s attempt to prosecute the same conduct twice is unconstitutional under the Double Jeopardy Clause. Id. at 14.

Respondent the United States counters that Denezpi is being tried by two separate sovereigns for two separate offenses, and therefore that the dual sovereignty exception to the Double Jeopardy Clause does apply. Brief for Respondent, United States of America at 16. The United States argues that the question of whether the dual sovereignty doctrine applies ultimately depends on which sovereign is the source of the law, not on the identity of the prosecuting entity. Id. at 16–17. Here, the United States explains, the source of Denezpi’s offense in the first prosecution was tribal law; the CFR court merely provided the forum for enforcing it. Id. at 22. The United States distinguishes the second prosecution as seeking to enforce federal law. Id. at 23. The United States argues that these successive prosecutions represent distinct tribal and federal interests. Id. at 16, 18. The United States asserts that the tribe’s interest in preserving order and protecting indigenous culture was vindicated in the first prosecution, whereas the federal prosecution provides an opportunity for the government to punish major offenses occurring on reservations. Id. at 23. Therefore, the United States concludes that Denezpi’s conduct, which violated the distinct criminal codes of two separate sovereigns, was properly prosecuted as two separate offenses. Id. at 16.

FORMALIST AND FUNCTIONALIST APPROACHES TO CFR COURT AUTHORITY

Merle Denezpi argues that CFR courts are Article I courts residing within a federal agency, the Bureau of Indian Affairs (“BIA”), and therefore express federal, not tribal, sovereignty. Brief for Petitioner at 23. According to Denezpi, the courts’ practices and historical origins show they cannot be properly characterized as enforcing tribal law. Id. Denezpi explains that, under Puerto Rico v. Sanchez Valle, when “two [prosecuting] entities draw their power from the same ultimate source,” the doctrine of dual sovereignty does not apply, regardless of the identity of the sovereign who enacted the laws. Id. at 16. Denezpi explains that since CFR courts derive their power to prosecute from federal statutes contained in the United States Code and the Code of Federal Regulations, and operate from within a federal agency, their ultimate source of power derives from the federal government. Id. at 27.

Furthermore, Denezpi asserts that the principles of Erie Railroad Co. v. Tompkins make clear that a federal court does not transform into a state court simply by enforcing state substantive law, just as a state court does not become a federal one by enforcing federal law. Id. at 27. Analogously, Denezpi explains, a CFR court does not transform into a tribal court simply because it enforces tribal law. Id.

From a formalist perspective, Denezpi also points to the historical origins of CFR courts as a strong indicator that federal sovereignty is the ultimate source of their prosecutorial power. Id. at 17–18. Denezpi notes that CFR courts were first established for the purpose of assimilating indigenous communities. Id. at 18–19. Denezpi asserts that the courts were created to supplant the tribal justice system and to criminalize tribal customs. Id. at 19, 21–22. Characterizing the CFR courts as instrumentalities of tribal power, Denezpi contends, would ignore this history. Id. at 23. Denezpi therefore maintains that CFR courts are federal agencies, so regardless of what substantive law they apply, they exercise federal, not tribal, sovereignty. Id. at 23. The overriding power of the federal government, Denezpi claims, is evident in the fact that tribes have no role in establishing or operating CFR courts. Id. at 23. Rather, as Denezpi explains, it is the BIA who has the authority, pursuant to federal law, to establish CFR courts, appoint CFR court judges, and exercise federal prosecutorial discretion, all without needing to obtain tribal consent. Id. at 21, 24. To further highlight the federal government’s superseding authority, Denezpi points out that BIA regulations describe CFR courts as “federal instrumentalities and not tribal bodies,” and that CFR courts issue their orders and warrants in the name of the United States. Id. at 24. Finally, Denezpi notes that once defendants are convicted in CFR court, they enter federal custody or pay fines to the federal treasury. Id. at 25. Thus, Denezpi argues that the CFR courts’ power to punish evidently derives from federal, not tribal, authority. Id. at 25.

The United States counters that the ultimate source of prosecutorial power is not the prosecuting entity but the sovereign that defined the offense; CFR courts merely provide forums for the exercise of the “primeval sovereignty” that originates in tribal law. Brief for Respondent, at 22–23. Regarding the historical origins of CFR courts, the United States concedes that federal agencies did not have the authority to enforce tribal law until 1935, but maintains that this has no impact on CFR courts’ current ability to administer tribal law. Id. at 35. The United States asserts that all three branches of the federal government currently recognize CFR courts as exercising tribal sovereignty, not federal sovereignty. Id. at 33, 35.

According to the United States, the relevant point under Erie is that state courts enforcing federal law are still enforcing federal offenses, just as federal district courts sitting in diversity are still enforcing state offenses. Id. at 28–29. Therefore, the United States argues that although Denezpi was prosecuted in a CFR court, because he was charged and sentenced under tribal law, this source of sovereign power is determinative of whether the doctrine of dual sovereignty applies. Id.

Taking a functionalist approach, the United States points out that tribes do, in fact, have the power to exercise their sovereignty in the establishment and operation of CFR courts because they have a choice in whether to use their own tribal court or to establish a CFR court for the prosecution of tribal offenses. Id. at 36. For example, the United States notes that when a tribe elects to use a CFR court, that tribe can enact ordinances that supersede federal regulations, participate in selecting and removing judges, and contract to appoint prosecutors. Id. at 37, 40. The Ute Mountain Ute Tribe, in support of the United States, highlights that under a 638 contract, the Tribe controls many aspects of their CFR court, such as the hiring of all court staff and the provision of staff with tribal salaries and benefits issued through the Tribe’s HR department. Brief of Amicus Curiae Ute Mountain Ute Tribe et. al in Support of Respondent at 19. The United States further contends that the court’s use of federal custody and the federal treasury does not necessarily imply that the courts exercise federal power. Brief for Respondent, at 38. The United States points out that these features are also true of tribally-operated courts, which are not considered subordinate to the federal government. Id. at 38. The United States thus concedes that while it holds a supervisory role in CFR courts, as it does in tribally operated courts, this does not supplant tribal authority. Id. Therefore, The United States concludes that Denezpi’s successive prosecutions in CFR and federal district courts are therefore permissible under the Double Jeopardy Clause as separate exercises of tribal and federal sovereign power. Id.

Discussion

ENSURING PUBLIC SAFETY ON TRIBAL LAND

Merle Denezpi argues that the CFR courts were not designed to aid tribes in protecting vulnerable citizens or public safety, but rather to punish members under federal law and authority for maintaining their traditions and cultural practices. Brief for the Petitioner, Merle Denezpi at 20. As such, Denezpi contends that tribal offenses prosecuted in CFR courts might not reflect the wishes of the tribes regarding those offenses and public safety more broadly. See id. At 30. Denezpi thus asserts that tribes would best be able to protect their public safety goals by establishing their own courts, as opposed to relying on federal proxies which may not align with the tribes’ interests. See id. Furthermore, Denezpi adds that subjecting him to repeated attempts to convict him for the same offense does nothing but embarrass him, cause him stress and anxiety, and cost him financially and personally. Id. at 32. Denezpi ultimately asserts that exempting the CFR courts from double jeopardy opens the door to fundamentally unfair over-prosecution and abuses which may not necessarily ensure public safety. See id. at 30–32.

The Ute Mountain Ute Tribe, the Eastern Shawnee Tribe of Oklahoma, and the Otoe-Missouria Tribe of Indians (“the Tribes”), in support of the United States, counter that applying double jeopardy would significantly impair public safety on large and often remote reservations. Brief of Amicus Curiae Ute Mountain Ute Tribe et. al in Support of Respondent at 12. The Tribes stress that double jeopardy would force them to choose between federal prosecutions and tribal prosecutions. Id. at 16–18. The Tribes note that while U.S. Attorneys’ Offices decline over 50% of criminal referrals from Indian country, CFR courts experience such persistent issues with neglect, underfunding, understaffing, and sentence restrictions that the Tribes would generally be forced to choose federal prosecution—thereby leading to under-prosecution of local offenses. Id. at 13, 16–18. The National Indigenous Women’s Resource Center and National Congress of American Indians (“NIWRC and NCAI”), also in support of the United States, add that under-prosecution is especially harmful given the extremely high rates of violent crime and sexual and gender-based violence against Native American victims. Brief of Amicus Curiae National Indigenous Women’s Resource Center and National Congress of American Indians in Support of Respondent at 6. Several former United States Attorneys (“the U.S. Attorneys”), in support of the United States, concur, arguing that CFR courts fill a key role by providing tribes without their own tribal court systems with the mechanisms that they need to ensure justice for vulnerable citizens. Brief of Amicus Curiae Former United States Attorneys John C. Anderson et al. in Support of Respondent at 15. Finally, Colorado, Nebraska, Nevada, and Utah (“the States”), also in support of the United States, highlight that crime and public safety issues on Native American reservations affect not only those who live on reservations, but also anyone who lives nearby or travels through a reservation. Brief of Amicus Curiae Colorado et al. in Support of Respondent at 11.

RESPECTING THE SOVEREIGN DIGNITY OF TRIBES

The National Association of Criminal Defense Lawyers (“NACDL”), in support of Denezpi, contends that the CFR courts inherently limit, rather than respect, the long-recognized independent sovereign dignity of tribal nations. See Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner at 12. NACDL highlights that while the United States government may unilaterally create CFR courts for the tribes, a tribe must obtain the federal government’s permission to terminate such courts. Id. NACDL notes that prosecutions in CFR courts are brought in the name of the United States, further infringing on respect for tribal sovereignty. Id. To this end, Denezpi asserts that the very purpose of the CFR courts is inconsistent with respecting and promoting tribal sovereignty. Brief for the Petitioner at 19. Denezpi argues that the United States created the CFR courts to impose federal law and Anglo-American cultural norms on Native communities, thereby intending to erase Native cultures through assimilation. Id. at 21. As such, Denezpi contends that treating CFR courts as based in tribal sovereignty paints a false historical picture which disrespects current tribal dignity and sovereignty. See id. at 19–21.

NIWRC and NCAI, in support of the United States, counter that including the CFR courts within the dual sovereignty exception is necessary as an extension of the movement to increase Native control of CFR courts and recognize Native sovereignty in the context of criminal and civil justice systems. Brief of Amicus Curiae National Indigenous Women’s Resource Center and National Congress of American Indians at 21. Several leading Federal Indian Law scholars and historians (“the Scholars”), also in support of the United States, argue that CFR courts are deeply important as they maintain the viability of legal systems under tribal control, particularly for smaller tribes who lack the financial resources to operate their own criminal and civil justice systems. Brief of Amicus Curiae Federal Indian Law Scholars and Historians in Support of Respondent at 12–13. The Scholars point out that without the CFR courts, tribes such as the Ute Mountain Ute would have few mechanisms with which to promote tribal justice and law. See id. at 12–15. The Scholars therefore contend that equating CFR courts to arms of the United States federal government disrespects their importance as a tribal institution and expression of tribal sovereignty. See id.