Denezpi v. United States: One Defendant, One Criminal Act, and Two Prosecutions—but No Double Jeopardy Violation

Written by: Giulia Hintz

In a recent opinion authored by one of the United States Supreme Court’s newest justices, Amy Coney Barrett, the United States Supreme Court addressed issues of tribal sovereignty and double jeopardy, specifically: whether Courts of Indian Offenses exercise federal authority or tribal sovereignty as it relates to protections for criminal defendants under the Fifth Amendment’s Double Jeopardy Clause.

What are Courts of Indian Offenses?

The Court of Indian Offenses (sometimes also called a C.F.R. court because of its basis in the Code of Federal Regulations) was established by the Department of the Interior in 1882 to adjudicate rule violations in Indian tribes or groups.  Today, most Indian tribes have replaced the Court of Indian Offenses with their own wholly independent tribal courts.  But some tribes have not created their own tribal courts and still utilize the Court of Indian Offenses, often due to financial constraints and inadequate resources.  Five Courts of Indian Offenses remain in the United States.  The purpose of the Court of Indian Offenses in these five tribal regions is to “provide adequate machinery for the administration of justice for Indian tribes” in Indian tribal regions “where tribal courts have not been established.”  These courts have jurisdiction over a set of offenses listed in federal regulations, as well as any penal codes enacted by the tribe and approved by the Department of the Interior’s Assistant Secretary for Indian Affairs. (Denezpi v. United States, 142 S.Ct. 1838 (2022)).

Procedural History

Merle Denezpi is a member of the Ute Mountain Ute Tribe, which spans over 500,000 acres across Colorado, New Mexico, and Utah. The Ute Mountain Ute Tribe utilizes the Southwest Region Court of Indian Offenses because the tribe has not established its own independent tribal court system.  However, the tribe has adopted its own penal code, which is enforced by the court.  In December of 2017, Denezpi was charged with assault and battery, terroristic threats, and false imprisonment in the Court of Indian Offenses arising from an act of sexual violence against another tribe member that occurred on tribal land. The Court of Indian Offenses convicted him and sentenced him to 140 days’ imprisonment with credit for time served.  Six months later, a federal grand jury indicted Denezpi on one count of aggravated sexual abuse based on the same incident.  Denezpi moved to dismiss the indictment, claiming that his prosecution in federal court was barred by the Fifth Amendment’s Double Jeopardy Clause.  But the federal district court denied his motion to dismiss.  Denezpi was convicted in federal court and sentenced to 30 years’ imprisonment.  The Tenth Circuit Court of Appeals affirmed, and the United States Supreme Court granted certiorari. (Denezpi v. United States, 142 S.Ct. 1838 (2022)).

Denezpi’s primary argument was that his subsequent prosecution in federal court put him in double jeopardy in violation of the Fifth Amendment. The Fifth Amendment of the United States Constitution provides, “No person shall…be subject for the same offence to be twice put in jeopardy of life or limb.”  Practically, this means that criminal defendants cannot be prosecuted twice for substantially the same crime.  The government argued that because the tribe and the federal government are separate and distinct sovereigns, the offenses prosecuted in those courts are not the same. This is called the dual-sovereignty doctrine, and it applies where “two entities derive their power to punish from wholly independent sources.” Because federal courts exercise federal power, and tribal courts like Courts of Indian Offenses exercise tribal power derived from tribal sovereignty, federal courts and tribal courts are distinct sovereigns.  Denezpi argued in response that Courts of Indian Offenses derive their authority from federal power and not from the tribe’s inherent sovereignty.  If both federal courts and Courts of Indian Offenses exercise federal power, then they are the same prosecutorial body and the same sovereign for purposes of double jeopardy. (Denezpi v. United States, 142 S.Ct. 1838 (2022)). 

The Majority’s Holding: Dual-Sovereignty and the Meaning of “Offense”

Justice Amy Coney Barrett issued the majority opinion for the Court.  Affirming the Tenth Circuit, the majority relied on Gamble v. United States, in which the Supreme Court held that a single act which violates the laws of two distinct sovereigns constitutes two separate offenses and does not put the defendant in double jeopardy.  Therefore, offenses can be separately prosecuted by distinct sovereigns, even if those offenses have identical elements.  Because the prosecutorial authority of Courts of Indian Offenses derives from their inherent tribal sovereignty and not federal authority, the dual-sovereignty doctrine is implicated and Denezpi’s double jeopardy protections were not violated.

Justice Gorsuch’s Dissent: This is the Definition of Double Jeopardy

“Same defendant, same crime, same prosecuting authority.  Yet according to the Court, the Double Jeopardy Clause has nothing to say about this case.  How can that be?”  Justice Gorsuch penned the dissent, joined in part by Justices Kagan and Sotomayor.  The dissent was quick to point out that on its face, this case appears to be a fairly straightforward double jeopardy violation.  The very purpose of the Double Jeopardy Clause in the Fifth Amendment is to protect against multiple prosecutions for the same criminal act, which is exactly what occurred here.   Justice Gorsuch addressed the majority’s dual-sovereignty argument by countering that the dual-sovereignty doctrine should not be used as a “sham” for prosecutors to work the system and get multiple shots at a conviction.  Further, he argued that because the Courts of Indian Offenses are “creature[s] of the Department of the Interior,” which is a department of the U.S. federal government, they derive their prosecutorial power from the federal government, not tribal sovereignty; thus, dual-sovereignty is not implicated in this case. (Denezpi v. United States, 142 S.Ct. 1838 (2022)). 

Effects of the Decision

The National Indigenous Women’s Resource Center and other groups celebrated the decision as a victory for tribal sovereignty.  The women’s advocacy group applauded the Supreme Court for “affirming the inherent right of the Ute Mountain Ute to exercise its sovereignty and protect its women and children from domestic violence and sexual assault.”  This group argued that the core of the case deals not with protecting defendants from double jeopardy, but “the inherent right of Tribal Nations to protect women and children on tribal lands.” But the Court’s decision in Denezpi brings a level of uncertainty for Indian criminal defendants, making them more vulnerable than ever to multiple prosecutions based on the same offense.  This decision could have the effect of severely limiting—if not completely eliminating—Fifth Amendment Double Jeopardy protections for criminal defendants who are members of Indian tribes throughout the United States.