Double jeopardy doesn’t apply to overlapping federal and tribal prosecutions, Supreme Court rules

By Tierney Sneed, Ariane de Vogue and Chandelis Duster, CNN

The Supreme Court on Monday held that a member of the Navajo Nation could be tried in a certain type of Indian court as well as a federal district court for the same crime without violating the double jeopardy clause of the Constitution.

Justice Amy Coney Barrett wrote the majority opinion released on Monday, joined by Justices John Roberts, Clarence Thomas, Stephen Breyer, Samuel Alito and Brett Kavanaugh. Justice Neil Gorsuch wrote a dissent that was joined in part by Justices Sonia Sotomayor and Elena Kagan.

Barrett wrote that Merle Denezpi — the member of the Navajo Nation who brought the case to Supreme Court after he was prosecuted in both a tribal and federal court for an alleged sexual abuse — had transgressed two laws with his offense: a tribal law and a federal criminal statute.

“The two laws, defined by separate sovereigns, therefore proscribe separate offenses,” she wrote. “Because Denezpi’s second prosecution did not place him in jeopardy again ‘for the same offence,’ that prosecution did not violate the Double Jeopardy Clause.”

The case represents the most recent dispute asking the court to decide tangled questions of the federal government’s jurisdiction when it comes to crimes committed by Indians on Indian land.

Denezpi, a member of the Navajo Nation, was indicted and charged with aggravated sexual abuse of another Native American referred to in court papers as “V.Y.” The crime occurred on the Ute Mountain Ute Reservation. While maintaining his innocence, he ultimately entered a plea in a court called a Court for Indian Offenses for the Ute Mountain Ute Agency. He was sentenced to 140 days incarceration and was released in December 2017.

Six months later, he was indicted in federal court for the District of Colorado on one count of aggravated sexual abuse based on the same incident.

His lawyers moved to dismiss the indictment on double jeopardy grounds, arguing he’d already been prosecuted. They lost the argument and he was ultimately sentenced to 30 years in prison — much more than he received in the Court of Indian Offenses. A federal appeals court affirmed the district court.

Role of tribal courts

Central to Denezpi’s arguments was whether the Court for Indian Offenses — known as a CFR court — is considered a Federal Court or a Tribal court.

Barrett referenced Denezpi’s arguments that CFR courts operates under the US Bureau of Indian Affairs and said the Supreme Court “need not sort out whether prosecutors in CFR courts exercise tribal or federal authority because we disagree with Denezpi’s premise.”

“The Double Jeopardy Clause does not prohibit successive prosecutions by the same sovereign. It prohibits successive prosecutions ‘for the same offence,'” she wrote.

In his dissent, Gorsuch recalled the concerns expressed when the Court of Indian Offenses was created that the tribal court would make it possible for a person to be charged with the same offense twice.

“Today, that pessimistic prediction has proved true,” Gorsuch wrote. “It is hard to believe this Court would long tolerate a similar state of affairs in any other context— allowing federal bureaucrats to define an offense; prosecute, judge, and punish an individual for it; and then transfer the case to the resident U. S. Attorney for a second trial for the same offense under federal statutory law.”

But that regime has “persisted in this country for Native Americans” for more than a century, Gorsuch wrote, and “today the Court extends its seal of approval to at least one aspect of it.”

“Worse, the Court does so in the name of vindicating tribal sovereign authority,” Gorsuch wrote. “The irony will not be lost on those whose rights are diminished by today’s decision.”

The Double Jeopardy Clause of the Constitution provides that no person shall be tried twice for the same offense. The Supreme Court has held that tribal courts are distinct sovereigns from federal courts and that an individual could be tried for the same offense in both courts without violating the Constitution.

Not every tribe, however, has created its own tribal courts. Today, five regional CFR courts still serve 16 tribes in Colorado, Oklahoma, Nevada, New Mexico and Utah. They were established in 1882 before a move for tribal self determination occurred in the ’30s and ’40s and tribal courts operated by the tribes themselves became the mainstream.

Lawyers for Denezpi argued that CFR courts are different than tribal courts because they function as an “arm of the federal government.” In court papers, Michael Kimberly, a lawyer for Denezpi noted that the CFR courts are constituted by federal regulations and enforce a criminal code that is promulgated by the Bureau of Indian Affairs. Prosecutions, he stressed are brought by the BIA in the name of the United States of America.

Therefore, he said, his client can’t be charged twice for the same offense. “The notion that a criminal court staffed entirely by federal employees, operating entirely within a branch of federal government is anything but a federal court, just doesn’t make sense,” Kimberly said in an interview.

The US government did not make the same distinctions between tribal courts and CFR courts. Solicitor General Elizabeth Prelogar said that that for “nearly two centuries, this Court has consistently recognized that a single act that violates two sovereign’s laws comprises two distinct [offenses] and that the Double Jeopardy Clause accordingly permits two prosecutions.”

Prelogar noted that the court has recognized that Indian tribes and the United States are distinct sovereigns for purposes of the Double Jeopardy Clause “because tribes’ authority to criminalize and punish conduct arises from their own historic sovereignty, not any grant of federal authority.”

This story has been updated with additional details from the opinion and dissent.

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