Double Jeopardy in Indian Country Gets Supreme Court Look (1)

Oct. 18, 2021, 2:09 PMUpdated: Oct. 18, 2021, 4:32 PM

The U.S. Supreme Court agreed on Monday to review whether double jeopardy bars prosecuting a defendant in federal district court after he’s convicted in a Court of Indian Offenses.

In answering that question, the justices will examine whether the latter court is a federal agency such that double jeopardy bars subsequent federal district court prosecution stemming from the same incident.

Under the dual-sovereignty doctrine, double prosecution wouldn’t be barred if Merle Denezpi was first tried in tribal court. The justices declined in a 2019 decision to overrule the doctrine that also allows successive prosecutions in state and federal court. Supreme Court precedent likewise allows the federal government to prosecute tribal members following tribal prosecutions.

“But Mr. Denezpi was not prosecuted in a tribal court,” his petition said. He was prosecuted in a Court of Indian Offenses established by the Bureau of Indian Affairs. Those courts are called “CFR courts” because they’re governed by the Code of Federal Regulations, Denezpi’s petition said.

“CFR courts differ from tribal courts and whether federal or tribal sovereignty is the source of their prosecutorial powers is an important question this Court has not yet answered,” his petition said.

There are several CFR courts across the country. These courts “operate where Tribes retain jurisdiction over American Indians that is exclusive of state jurisdiction, but where Tribal courts have not been established to fully exercise that jurisdiction,” according to the Bureau of Indian Affairs.

Opposing Supreme Court review, the Justice Department said “a prosecution for a tribal offense in the Court of Indian Offenses is commonly understood to be an exercise of a tribe’s own sovereignty.”

The case will be argued later this term and likely decided by July.

The Fifth Amendment to the U.S. Constitution says “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

In July 2017, Denezpi, a Navajo tribal member, was arrested by Ute Mountain Ute tribal authorities. He was charged with violating tribal assault and battery law and with the CFR violations of terroristic threats and false imprisonment. In the Ute Mountain Ute CFR court, he entered an Alford plea to the assault and battery charge and was sentenced to 140 days’ incarceration. The remaining charges were dismissed. Alford pleas resolve cases without defendants admitting guilt.

Denezpi was later charged in Colorado federal district court with aggravated sexual assault. He was convicted at trial and sentenced to 30 years in prison and 10 years of supervised release. The Bureau of Prisons says he’ll be released in 2044.

The case is Denezpi v. United States, U.S., No. 20-7622.

(Adds snapshots, case detail, CFR court information, link to Tenth Circuit decision below. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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