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Argument in double-jeopardy case shines spotlight on prosecutorial issues faced by Native tribesHeather Whiteman Runs Him

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The Supreme Court heard argument on Tuesday in Denezpi v. United States, which examines whether the federal government can bring criminal charges in federal court against a defendant previously found guilty in a Court of Indian Offenses for an offense stemming from the same act. The defendant, Merle Denezpi, claims the subsequent federal prosecution violates his Fifth Amendment right to be free from double jeopardy. The federal government believes the case falls under the “separate sovereigns” doctrine, which allows dual prosecutions by distinct sovereign entities.

Michael Kimberly, arguing for Denezpi, opened by stating that the law-making and law-enforcing aspects of sovereignty are equally important to determining whether expressions of sovereign power are separate. Kimberly argued that Denezpi’s double jeopardy rights were violated because although he was originally prosecuted for an offense grounded in tribal law in the Ute Mountain Ute Court of Indian Offenses, the prosecutor in that proceeding was a federal employee appointed by the federal government. Kimberly repeatedly emphasized that the prosecutor in the Court of Indian Offenses – a so-called “CFR court” because it was established under the Code of Federal Regulations – answered to the federal government rather than to the Ute Mountain Ute tribe. The federal role in Denezpi’s trial in the CFR court was thus not truly separate from the subsequent federal prosecution in Colorado’s federal district court, Kimberly said.  

Justice Sonia Sotomayor asked Kimberly if there was an “easy fix” for the tribe and the federal government to avoid double jeopardy problems in future cases in the event that the Supreme Court rules in favor of Denezpi. Kimberly responded that there are two easy fixes, both of which, he asserted, respect tribal sovereignty. He suggested that the tribe could enter into a contract with the federal government for funding to administer prosecutions through its own prosecutor. He also suggested the reallocation of federal funding to establish tribal courts instead of funding the operation of CFR courts. Sotomayor pointed out that those funding and program shifts might not be feasible for the most economically challenged smaller tribes. 

The questions raised by the justices largely focused on the degree of federal approval and oversight in the CFR court, with several justices focusing on the details of what that approval entails. Justice Stephen Breyer inquired about the process to secure approval for prosecutions in the CFR Court – and whether such approval was required from tribal or federal authorities. The responses to these questions did not provide extensive detail, but rather refocused on federal, rather than tribal, requirements and approvals. Breyer further noted the detailed history of similar federal approval requirements for tribal codes and programs as described in an amicus brief submitted by Indian law scholars. Along with Justice Elena Kagan, Breyer questioned Kimberly about how federal the CFR court (and thus its prosecutor) really is, when the tribe, according to its amicus brief, considers it to be the tribal court. Kimberly responded that while the tribe unquestionably relies on the CFR court to enforce its laws, that reliance may ultimately result in double jeopardy issues when later federal cases are brought. 

Some justices suggested alternate theories through which to view the issues raised by Denezpi. Justice Clarence Thomas asked whether CFR courts, if federal rather than tribal, were ultimately Article I courts, potentially raising the issue of their authority to enforce criminal law (but perhaps not raising a double jeopardy issue). Justice Samuel Alito, in a series of questions reminiscent of concerns he raised in oral argument in McGirt v. Oklahoma during the 2019-20 term, asked whether a federal criminal statute could include a racial classification, and whether that was relevant in assessing whether a provision of the tribal code was actually federal law. Kimberly responded that those issues might arise in future cases but are not before the court in Denezpi

Arguing for the United States, Assistant to the Solicitor General Erica Ross opened her argument by citing the court’s long-established analysis of the ultimate source of sovereignty applied in double jeopardy cases. “The tribes and the federal government are separate sovereigns for these purposes because they derive their power to prescribe conduct from different sources of authority,” she said. She noted the tribe as the ultimate source of authority for Denezpi’s initial prosecution, and that it “made the sovereign choice” to do so through a Court of Indian Offenses. Ross urged that neither the nature of the court nor its prosecutor changed the ultimate source of authority for prosecution. 

Thomas opened, expressing concern about the disparity between the 140-day sentence rendered by the CFR court and the 30-year sentence imposed by the federal court. Ross explained that the Indian Civil Rights Act limits the lengths of sentences and amounts of fines that can be imposed by tribal courts to one year or less in most cases – including in CFR courts. When pressed as to the value of the initial prosecution, Ross stressed the importance to the tribe, as a sovereign, to address criminal conduct under its own laws, and that imposing any sentence remains a significant exercise of its authority. Ross also reminded the justices that tribal courts frequently function as a failsafe when federal charges are not promptly filed against defendants presenting ongoing threats to community safety in Indian Country, but that the limitations on tribal courts’ sentencing authority underscore the importance of the subsequent federal prosecution. She noted that this is a “common fact pattern” and is consistent with the facts underlying the court’s decision in United States v. Wheeler.

More questions about the practical implications of the case followed. Chief Justice John Roberts asked about the possibility of federal prosecutors using CFR courts as “practice rounds” to take an initial run at a case before initiating proceedings in federal district court. Ross noted that there was no indication of that type of motivation in this case, or as a general practice. She further responded by citing to an amicus brief filed by several former United States attorneys, which stated that U.S. attorneys do not actively coordinate or commingle their authority with Bureau of Indian Affairs prosecutors working in CFR courts.

Justices Neil Gorsuch and Sotomayor questioned whether the CFR court passes muster under the Supreme Court’s double jeopardy case law examining the prosecutorial function. Sotomayor pressed Ross on the tribe’s ability to influence prosecutorial priorities or approve charges brought in the CFR courts. Ross ultimately cited the tribe’s ability to rewrite its ordinances, and its choice to utilize a CFR court more generally. The Ute Mountain Ute Tribe, it was noted, at one point operated an independent tribal court before opting back into the CFR court system for efficiency. Kagan followed up with more detailed questions about the operation of prosecution and hypothesized about degrees of federal control that would unquestionably raise double jeopardy concerns. 

In rebuttal, Kimberly noted that tribes operating CFR courts might not have as much choice as the United States contends, due to some tribes’ laws requiring federal approval for tribal code or constitutional revisions, and the financial constraints faced by many tribes that currently make operating their own judicial systems impossible.

Several justices noted that there seemed to be relatively straightforward ways for the federal government and tribes utilizing CFR courts to avoid this dilemma. Kimberly conceded that if done “in an unambiguous way,” by allowing tribes to appoint prosecutors directly, there would likely be no issue of double jeopardy. However, as Ross pointed out, the choice to utilize a CFR court, in its present form, comes down to a tribe’s sovereign decision on how to exercise its sovereignty.

The court may follow the broad rule urged by the United States, but it appears that several key justices have deeper questions about how the CFR courts function as a practical matter, as well as through the terms of their federal regulations, and how this squares with the court’s double jeopardy jurisprudence. However the case is decided, it may lead to increased tribal oversight of prosecution in CFR courts, and it certainly highlights and reinforces calls for additional federal funding for tribal courts and tribal prosecution.

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