Focusing on the meaning of “offense,” a divided court throws salt on double jeopardy claim

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OPINION ANALYSIS
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An intriguingly divided court ruled Monday in Denezpi v. United States, upholding the federal court conviction of a defendant previously prosecuted and sentenced by a Court of Indian Offenses for charges stemming from the same incident. Justice Amy Coney Barrett wrote for the majority, joined by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, Samuel Alito, and Brett Kavanaugh. Justice Neil Gorsuch filed a dissenting opinion, joined in part by Justices Sonia Sotomayor and Elena Kagan.

The majority’s ruling turned not on the source of authority of the Court of Indian Offenses, but instead approached the case by looking to the relevant text in the Fifth Amendment’s double jeopardy clause. The source of authority for the laws defining the offenses in question were separate – tribal and federal – exercises of distinct sovereigns; therefore, Merle Denezpi’s federal prosecution did not violate his right not to be twice in jeopardy for “the same offense.”

In December 2017, Denezpi, a citizen of the Navajo Nation, was arrested for violent sexual offenses committed on the Ute Mountain Ute Indian Reservation against V.Y., also a citizen of the Navajo Nation. Denezpi was initially charged with two violations of the Code of Federal Regulations and one violation of the Ute Mountain Ute Tribal Code in the Court of Indian Offenses for the Ute Mountain Ute Agency. He was sentenced to 140 days in jail, time he had already served, pursuant to an Alford plea in connection with the tribal-code offense of assault and battery. 

Six months later, a federal court indicted Denezpi for a violation of a federal criminal statute pursuant to the same incident; he was ultimately convicted and sentenced to serve 30 years in prison. Denezpi asserted that the subsequent federal prosecution violated his right to be free from double jeopardy – to not be prosecuted twice for the same offense by the same sovereign. The district court rejected Denezpi’s double jeopardy argument, and the U.S Court of Appeals for the 10th Circuit upheld the district court’s ruling.

Denezpi’s petition for certiorari was granted by the Supreme Court on the question of whether the authority exercised by the Court of Indian Offenses of the Ute Mountain Ute Agency was an exercise of federal, rather than tribal, sovereignty, and thus in violation of his right to be free from double jeopardy. The Supreme Court rejected Denezpi’s double jeopardy argument. Rather than determining the applicability of the dual sovereignty doctrine, the court looked to the text of the double jeopardy clause, the meaning of “offense,” and the sovereign authority of the Ute Mountain Ute Tribe to define offenses as a matter of tribal law.

Denezpi’s arguments focused on the basis for the initial charges brought against him in the Court of Indian Offenses – and the very operation of the court itself – as federal rather than tribal. Therefore, Denezpi asserted, his subsequent indictment and prosecution in federal court violated his Fifth Amendment right to be free from double jeopardy. Conversely, the United States asserted that the sovereignty of the Ute Mountain Ute Tribe was the source of authority for Denezpi’s initial prosecution in the Court of Indian Offenses, and that because the Ute Mountain Ute Tribe is a separate sovereign from the United States, a subsequent federal prosecution did not violate Denezpi’s double jeopardy rights. 

Citing the dual sovereignty doctrine at the outset and stating that it is not an “exception” to double jeopardy protections, Barrett’s opinion for the majority noted a “twist” in the case: Rather than a straightforward analysis of two separate sovereigns enforcing provisions of their own respective laws, this case potentially involved one sovereign enforcing both its own law and the law of a different sovereign. Although Barrett framed the issue in Denezpi as “arguably” involving one sovereign enforcer and two sovereign sources of law, the question of the ultimate source of sovereign authority for the operation of the Court of Indian Offenses was not decided. Barrett’s analysis turned not on who put the defendant in jeopardy, but instead on what put the defendant in jeopardy – the sovereign authority underlying the law defining the offense. 

Barrett, writing for the majority, focused first on the text of the double jeopardy clause, rather than on the ultimate source of authority of the Ute Mountain Ute Court of Indian Offenses. She relied on the plain language of the clause, past definitions of the term “offense” from as far back as 1791, and recent decisions by the court rejecting challenges to the dual sovereignty doctrine. Soundly rejecting nearly all of Denezpi’s arguments, Barrett urged that the language he cited from the court’s case law be taken “with a healthy sprinkling of salt.”

Barrett acknowledged that past cases such as U.S. v. Wheeler and, more recently, Puerto Rico v. Sanchez Valle examined similar questions, but the issues in those cases fell more squarely within the dual sovereignty doctrine. Whether the double jeopardy clause prohibits a single sovereign from prosecutions for offenses based in both its own law and the law of another sovereign was not determined by any of those prior rulings. But, the court ruled, separate, successive prosecutions of different offenses – regardless of the prosecutorial authority exercised – cannot violate the double jeopardy clause because the constitutional protection is tied to the offense, not the prosecution. The term “offense,” Barrett wrote, is “defined by a law” and does not refer broadly to the underlying incident. Denezpi’s conviction in federal court for an offense defined by a federal criminal statute, after previously pleading to and being sentenced for an offense defined by a tribal law, although possibly prosecuted by the same sovereign, did not violate his right not to be twice put in jeopardy for the same offense. 

The court cited Wheeler’s acknowledgement of the inherent power of tribes to pass laws and punish violations of those laws, stemming not from the federal government, but from “the tribal power of self-government.” The majority, following the Wheeler court’s analysis, then stated that “[o]ur reasoning in Wheeler controls here … The Ute Mountain Ute Tribe, like the Navajo Tribe in Wheeler, exercised its unique sovereign authority in adopting the tribal ordinance.”

Gorsuch’s dissent

Because of Gorsuch’s widely acknowledged experience with federal Indian law issues, the dissent’s treatment of these questions, this history, merits discussion.  And the dissent’s views of the history of the Courts of Indian Offenses and their current status, lead down a vastly different path from the analysis set forth by the majority opinion.

Gorsuch, joined by Sotomayor and Kagan, posited at the outset that the dual sovereignty doctrine itself is inconsistent with the text and original meaning of the Constitution. From that initial pronouncement, which is consistent with his dissent in Gamble v. United States in 2019 (a case in which Kagan and Sotomayor joined the majority to uphold the dual sovereignty doctrine), Gorsuch recounted the history of the Courts of Indian Offenses, noting the establishment of both the courts and the offenses they prosecute under federal regulation. He highlighted the many areas where the federal government continues to exercise authority through its administration of the courts – including its power to appoint and remove both magistrates and prosecutors, and to assimilate and approve tribal code provisions enforced by the courts. 

The dual sovereignty doctrine, Gorsuch noted, has its basis in substantive differences in the interests of two prosecuting sovereigns in punishing an act. It requires that the authority exercised cannot stem from the same source and that dual sovereignty cannot be a “sham” for prosecutors trying to game the system and take multiple shots at a conviction, he argued. The “deepest historical wellsprings” of the authority exercised by Courts of Indian Offenses, wrote Gorsuch, are in the Department of Interior – a federal agency – and that authority “was and remains a federal scheme.” To suggest otherwise, he said, would be “deeply revisionist.” In Denezpi’s Court of Indian Offenses proceeding, “federal agency officials played every meaningful role in his case: legislator, prosecutor, judge, and jailor.” In other words, in the dissent’s view, Denezpi’s first prosecution was, ultimately, an exercise of the authority of the Department of Interior, and the second prosecution was then initiated by the Department of Justice, making the entirety of both proceedings “federal through and through.”

In a separate section of the dissent, not joined by Kagan and Sotomayor, Gorsuch characterized the Court of Indian Offenses as “a curious regime” on a “shaky legal foundation” in the absence of any federal statutory authorization, concluding that because Denezpi did not challenge the validity of those courts, those issues remain unresolved.

Courts of Indian Offenses were initially established on Indian reservations to enforce federal laws and regulations that punished traditional indigenous cultural and religious practices, but were later reformed, discontinuing their paternalistic, racist policies and instead providing a forum for resolution of contemporary legal cases within those same communities. The courts operate today as the judicial institutions for a number of federally recognized Indian tribes, including the Ute Mountain Ute Tribe, utilizing varying degrees of mixed tribal and federal law and personnel. Over time, many tribal governments in the United States have established new tribal judicial systems pursuant to tribal law. However, some tribes continue to utilize Courts of Indian Offenses to perform the judicial function on their reservations, due to the financial and human resource burdens of establishing and operating a judiciary. 

The outcome of the case is surely a relief to those Indian tribes that continue to depend on Courts of Indian Offenses as the forums in which offenses against tribal law are prosecuted. For tribes like the Ute Mountain Ute, the ability to address public safety concerns and prosecute violent criminal offenses in a timely manner without undue disruption and delay is critical.  The majority opinion took a different path than was generally expected in upholding the federal court conviction of Denezpi for horrific and violent acts. Ultimately, though, the court did not base its analysis on the decision made by the Ute Mountain Ute, and other similarly situated tribal nations, to allow these courts to continue to function as the judicial institutions in their communities – a decision which constitutes an exercise of sovereignty in and of itself. However, the majority’s decisive recognition of tribal law as separate and distinct from federal statutes, an exercise of tribal sovereignty and “inherent power to prescribe laws” that predates the arrival of Europeans on this continent, appears to demonstrate an increasing capacity from the Supreme Court to analyze questions of tribal sovereignty in a balanced and fair manner.



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