This Report summarizes opinions issued on October 18, 2021 (Part I); and cases granted review on that date (Part II).
Case Granted Review: Denezpi v. United States, 20-7622
Denezpi v. United States, 20-7622. The question presented is whether “the Court of Indian Offenses of Ute Mountain Ute Agency [is] a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States District Court for a crime arising out of the same incident.” Petitioner Merle Denezpi is a member of the Navajo Nation. Another member of the Navajo Nation accused him of sexually assaulting her within the Ute Mountain Ute Indian reservation. After he was arrested by a federal Bureau of Indian Affairs (BIA) police officer, the officer filed a criminal complaint with the Court of Indian Offenses of the Ute Mountain Ute Agency. Courts of Indian Offenses are courts created by the BIA “to administer criminal justice for those tribes lacking their own criminal courts.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 64 n.17 (1978). Following an Alford plea, petitioner was convicted on a tribal-law assault-and-battery count. Six months later, a federal grand jury in the District of Colorado indicted petitioner on one count of aggravated sexual abuse in Indian country, in violation of 18 U.S.C. §§1153(a) and 2241(a)(1) and (2). Petitioner moved to dismiss the indictment under the Double Jeopardy Clause, asserting that he had been previously convicted of the “same” offense in the Court of Indian Offenses. The district court denied the motion based on the “dual sovereignty” doctrine, under which the Double Jeopardy Clause does not apply to prosecutions brought by different sovereigns―such as the federal government and a tribe. A jury then found petitioner guilty of aggravated sexual abuse. The Tenth Circuit affirmed the conviction, rejecting petitioner’s double jeopardy argument. 979 F.3d 777.
The Tenth Circuit noted that “whether two prosecuting authorities are different sovereigns for double jeopardy purposes . . . hinges on a single criterion: the ‘ultimate source’ of the power undergirding the respective prosecutions.” The court then ruled that the “‘ultimate source’ of the power undergirding” the prosecution of petitioner in the Court of Indian Offenses was “the Ute Mountain Ute Tribe’s inherent sovereignty.” The court explained that Congress’s creation of such courts “did not divest the tribes of their self-governing power but instead merely provided the forum through which the tribes could exercise that power until a tribal court replaced” them.
Petitioner counters that “[t]he history and structure of the CFR Courts [a common abbreviation for Courts of Indian Offenses] establish they are arms of the federal government despite also functioning as tribal forums in areas lacking independent tribal courts.“ He notes that “[t]he courts are established pursuant to regulations promulgated by the Bureau of Indian Affairs”; and quotes a prior Tenth Circuit opinion stating that “CFR courts that have not been supplanted by independent tribal courts . . . retain some characteristics of an agency of the federal government.” Thus, the Eighth Circuit has noted that “[t]he records of C.F.R. courts are agency records and belong to the United States,” while the Ninth Circuit has said that “[i]t is pure fiction to say that the [CFR courts] . . . are not in part, at least, arms of the federal government.” Petitioner concludes that, “[b]ecause the CFR courts function, at least in part, as a ‘federal agency,’ the Double Jeopardy clause prohibits a second prosecution by another federal agency, in this case the Department of Justice.” And he adds that “[t]he caption on the pleadings in the CFR Court (United States of America v. Merle Denezpi) support[s] the conclusion that the CFR Court is a federal court for purposes of double jeopardy analysis.”
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]