Crimes Committed on Tribal Land May Be Subjected to Being Prosecuted Twice
June 20, 2022
By Heidi McNeil Staudenmaier and Kelsey C. Haake1
In a 6-3 decision, the United States Supreme Court ruled that a Native American defendant who was previously prosecuted in a special federal administrative tribal court can be charged in a federal court for the same incident without violating the Double Jeopardy Clause. Essentially, the Court confirmed that offenders may be held accountable by both the tribal and federal governments for an offense stemming from the same incident.
The ruling, authored by Justice Amy Coney Barrett, aligns with a 1978 case that had the same outcome concerning a similar issue in a more frequently used tribal court. The dissent, led by Justice Neil Gorsuch, was joined by Justices Sonia Sotomayor and Elena Kagan. Justice Gorsuch is widely touted as a devoted defender of tribal sovereignty.
The case involved Merle Denezpi, a Navajo Nation member, who was accused of rape after traveling to the Ute Mountain reservation with another Navajo Nation woman in July 2017. Denezpi was tried in the Court of Indian Offenses—a court established by the United States Department of the Interior in 1883 to deal with alleged Native American offenders. The Court of Indian Offenses is of limited jurisdiction and usually only imposes sentences for up to a year. Here, Denezpi was sentenced to 140 days in jail by the Court of Indian Offenses after being charged with assault and battery. Federal court prosecution followed thereafter, and Denezpi was sentenced by that court to 30 years in prison.
To many observers, this looked like a classic double jeopardy case. The majority disagreed. Justice Barrett opined: “Denezpi’s single act led to separate prosecutions for violations of a tribal ordinance and a federal statute. Because the Tribe and the Federal Government are distinct sovereigns, those ‘offence[s]’ are not ‘the same.’” Furthermore, “Denezpi’s second prosecution did not offend the Double Jeopardy Clause.”
Disagreeing with Denezpi’s premise of being tried twice for the same crime, Justice Barrett indicated the “Double Jeopardy Clause does not prohibit successive prosecutions by the same sovereign.” Instead, “[i]t prohibits successive prosecutions for the same offense.” Justice Barrett argued that double jeopardy did not apply because two different sovereign nations were prosecuting the crime.
Barrett further reasoned that the Court of Indian Offenses applied the Ute Mountain Reservation sovereign powers, while the federal court applied the sovereign powers of the federal government. As such, the Justice insinuated that, because they were two separate sovereign powers, double jeopardy was inapplicable.
Justice Gorsuch wholly disagreed. He wrote that this was the “same defendant, same crime, [and] same prosecuting authority” and further argued the “doctrine is at odds with the text and meaning of the Constitution” and “cannot sustain the Court’s conclusion.” Justice Gorsuch emphasized that the Court of Indian Offenses truly belonged to the United States through the Department of the Interior, instead of being a tribal court. On this basis, the majority ruling could potentially allow prosecutors to rehearse their trial in one jurisdiction to get ready for the subsequent trial in another jurisdiction. Furthermore, Gorsuch believed the majority’s ruling undermines tribal sovereign authority.
In sum, the Supreme Court ruled that alleged Native American defendants can potentially be tried twice for the same incident without triggering the Double Jeopardy Clause if prosecuted in two different jurisdictions.
- Kelsey C. Haake is a 2022 Summer Associate at Snell & Wilmer, and is a 2023 JD Candidate at the University of Pennsylvania Carey School of Law.
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