On Monday, the Supreme Court ruled in Denezpi v. United States that the Fifth Amendment’s double jeopardy clause does not prevent both tribal and federal governments from prosecuting an individual for the same crime. These two governments, the court held, are separate sovereigns, and each has an interest in defining and punishing illegal acts within its jurisdiction. The case split 6–3, with the majority and the dissent disagreeing over not just law but history. In the end, the majority got the law right, but ignored crucial historical facts that could have bolstered contemporary tribal sovereignty.
Denezpi stems from disputes over a sexual assault that occurred in a house located on tribal land. Two members of the Navajo Nation, Merle Denezpi and V.Y., traveled to Towaoc, Colorado, a town within the Ute Mountain Ute Reservation. Once there, Denezpi “barricaded the door, threatened V.Y., and forced her to have sex with him,” as the court described the facts. V.Y. escaped and reported Denezpi to tribal authorities.
Federal prosecutors filed a complaint against Denezpi in Ute Mountain Ute Tribe’s Court of Indian Offenses, otherwise known as a CFR Court, under the tribal law offense of assault and battery. CFR courts specifically deal with crimes committed by Native Americans and operate outside of state jurisdiction. Denezpi pleaded guilty to the assault and battery charge and was sentenced to time served—roughly five months. But six months later, a federal grand jury in the District of Colorado indicted Denezpi on one count of aggravated sexual abuse in Indian country, a federal offense. Denezpi moved to dismiss the indictment, arguing that the CFR court derived its authority from a federal grant of power, meaning Denezpi’s previous prosecution barred his subsequent federal prosecution for the same incident. Ultimately, the district court dismissed his claims and Denezpi was convicted and sentenced to 30 years in prison.
Accordingly, the central question in the case was whether the Ute Mountain Ute Court derives its prosecutorial power from the sovereign power of the tribe or the federal government.
In a 6–3 decision, the Supreme Court rejected Denezpi’s argument and ruled that a tribal member’s actions led to separate prosecutions under tribal ordinance and federal statute. Justice Amy Coney Barrett wrote the majority opinion, sidestepping the question of whether the CFR court derived its power from sovereignty or the federal government. Instead, the justice argued that Denezpi had been prosecuted for distinct offenses. “The Court need not decide whether prosecutors in CFR courts exercise tribal or federal authority because the Double Jeopardy Clause does not prohibit successive prosecutions by the same sovereign,” she wrote. Rather, it prohibits successive prosecutions “for the same offense.” Ultimately, Barrett concluded that the “the two laws—defined by separate sovereigns—proscribe separate offenses, so Denezpi’s second prosecution did not place him in jeopardy again ‘for the same offense.’ ”
Justice Neil Gorsuch dissented, joined in part by Justices Sonia Sotomayor and Elena Kagan. Gorsuch addressed the question of prosecutorial power directly, arguing that the double jeopardy clause should have precluded Denezpi’s federal court conviction, because “federal prosecutors tried Merle Denezpi twice for the same crime. First, they charged him with violating a federal regulation. Then, they charged him with violating an overlapping federal statute. Same defendant, same crime, same prosecuting authority.” Gorsuch also recounted the CFR courts’ original goal of trying to “civilize the Indians” by compelling them to “desist from the savage and barbarous practices.”
However, Gorsuch’s dissent tells an oversimplified story of federal Indian law and of CFR courts. A quick look at the history of these courts helps explain both the confused reasoning in the majority opinion and the unusual alliance in the dissent. The NYU-Yale American Indian Sovereignty Project, through its Native Amicus Briefing Project, provided this history in an amicus brief that I collaborated with several scholars and historians on.
Native peoples have governed themselves under their own laws since time immemorial. At the founding of these distinct governing bodies, the United States anticipated that tribes and the federal government would each retain separate power to punish criminals for violations of their own laws without implicating double jeopardy. From that moment onward, however, the United States also began to assert shared jurisdiction within Indian country.
CFR courts, where Denezpi was initially prosecuted, originated in the late 19th century as Courts of Indian Offenses. Federal officials hoped to utilize these courts to transform Native culture and extinguish traditional practices. Under assimilationist goals, the U.S. wanted tribes to incorporate Western ideals of what justice systems should look like. In 1885, Congress passed the Major Crimes Act, which placed certain crimes committed by Natives against Natives in Indian country under federal jurisdiction. Those crimes include rape, along with murder, manslaughter, assault with intent to kill, arson, burglary, and larceny. And tribes lost their authority to prosecute most major crimes.
When Congress enacted the Major Crimes Act, it recognized that the CFR courts were an inadequate substitute for federal criminal jurisdiction because they relied on tribes’ curtailed prosecutorial authority. (Consider that the Court of Indian Offenses did not charge and sentence Denezpi for rape.)
Centuries later, in 2010, the Tribal Law and Order Act was passed, restoring limited felony sentencing authority to tribes. The act places an emphasis on preventing and prosecuting violence against Native women, allowing tribes to hire more law enforcement officers and providing additional resources to prosecute and punish offenders. The act also expanded the tribal court’s ability to sentence offenders—extending the maximum sentence from one year to three.
The passage of the Major Crimes Act and the Tribal Law and Order Act helped push CFR courts past their initial goal of Westernizing Indian country. Gorsuch’s historical account leaves out the crucial advances that the federal government has made in coordination with tribes to eradicate these colonialist origins. Laws like the Major Crimes Act and the Tribal Law and Order Act have affirmed that CFR courts still derive their source of authority from tribal sovereignty.
This distinction is critical. For double jeopardy purposes, Indian tribes and the United States are distinct sovereigns because a tribe’s prosecutorial authority stems from its inherent sovereignty authority and not from a grant of federal authority, as Gorsuch argued in his dissent. In sum, the majority came to the right conclusion—but in doing so, missed an opportunity to affirm the historical facts that could have bolstered its decision.