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Supreme Court endorses back-to-back federal & tribal sentences for Navajo man

The split decision against a Navajo nation member who complained of double jeopardy has Justice Neil Gorsuch in the dissent

The Supreme Court ruled 6-3 Monday against a Navajo Nation member who said double jeopardy occurred when he was given tribal and federal sentences for the same instance of sexual assault.

Writing for the majority, Justice Amy Coney Barrett underlined that a tribe enacts criminal laws out of its own sovereignty “and not as an arm of the Federal Government.” 

In the case at hand, Barrett continued, Merle Denezpi’s single act of sexual assault “transgressed two laws: the Ute Mountain Ute Code’s assault and battery ordinance and the United States Code’s proscription of aggravated sexual abuse in Indian country.” 

“The Ute Mountain Ute Tribe, like the Navajo Tribe in Wheeler, exercised its ‘unique’ sovereign authority in adopting the tribal ordinance,” Barrett wrote in the 13-page lead opinion. “Likewise, Congress exercised the United States’ sovereign power in enacting the federal criminal statute. The two laws, defined by separate sovereigns, therefore proscribe separate offenses.”

The case stems from sexual assault claims that a member of the Navajo Nation brought against Denezpi, a fellow member, in July 2017. The Court of Indian Offenses of Ute Mountain Ute Agency — a court created when an area does not have its own tribal court — charged Denezpi with terroristic threats, false imprisonment, and assault and battery.

Denezpi insisted that the sex was consensual but, anticipating that the court would convict him, he reached a plea deal on the assault and battery charge in exchange for the dismissal of the other two charges. He was sentenced to 140 days in prison. 

Upon his release, however, federal prosecutors in Colorado then charged Denezpi with aggravated sexual abuse. He claimed the charge violated his Fifth Amendment right to be free from double jeopardy, but his motion was denied and he was convicted by a federal jury and sentenced to 30 years incarceration. 

After the 10th Circuit affirmed, Denezpi took his case to Supreme Court arguments in February.

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Extinguishing those claims, the majority concluded Monday that Denezpi’s second prosecution did not place him in jeopardy again “for the same offence,” spelling the word as it appears in the Double Jeopardy Clause of the Fifth Amendment.

But a dissent penned by Justice Neil Gorsuch found differently. 

“I believe that doctrine is at odds with the text and original meaning of the Constitution,” Gorsuch wrote Monday, saying that, unlike a tribal court operated by a Native American Tribe within its own sovereign authority, the Court of Indian Offenses is “part of the Federal Government,” brought forth by the Department of the Interior, in part to outlaw “everything from ‘old heathenish dances’ and ‘medicine men’ and their ‘conjurers’ arts’ to certain Indian mourning practices.” As a result, Gorsuch continued, “tribal members often regarded these courts as ‘foreign’ and ‘hated’ institutions.”

Himself a former judge on the 10th Circuit, which handles federal appeals from six states west of the Mississippi River, Gorsuch came into his seat on the high court with a strong track record for backing tribal rights. Notably, the Trump appointee also sided with the court’s four liberal justices in a 5-4 decision in 2020 that reclassified a large swath of eastern Oklahoma — territory that the federal government ripped away from Native Americans during the Trail of Tears — as Native Americans land.

Gorsuch noted Monday that, as early as the 1890s, there had been documented concerns that the creation of the Court of Indian Offenses could make it possible to try people twice for the same offense.

“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.

“Still, for over a century that regime has persisted in this country for Native Americans, 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,” the dissent continues. “The irony will not be lost on those whose rights are diminished by today’s decision.”

Justices Sonia Sotomayor and Elena Kagan joined two of the three sections in Gorsuch’s dissent, both of which are quoted here.

Michael Kimberly, an attorney for Denezpi with the Chicago firm McDermott Will & Emery, did not return a request for comment. At oral arguments, Kimberly had hinged their appeal on classifying the Court of Indian Offenses — also known as the CFR court, for the Code of Federal Regulations — as an arm of the U.S. government because the prosecutor there answers to federal authorities. 

For the U.S. government, meanwhile, Assistant to the Solicitor General Erica Ross said Denezpi had violated both tribal laws and federal laws — committing two separate offenses, allowing for two separate sentences.

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For nearly two centuries, she said, the high court has recognized that the clause prohibits two prosecutions only for the same offense.

Representatives for the Justice Department did not return a request for comment Monday.

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