February 22
Denezpi v. United States
No. 20-7622, 10th Cir.
Preview by Reid Ostrom, Online Editor
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. In general, the dual sovereignty doctrine allows separate state and federal prosecutions for the same act. However, this dual sovereignty doctrine presents complex issues in “Indian country,” where there is a “complex patchwork of federal, state, and tribal law.” Negonsott v. Samuels, 507 U.S. 99, 102 (1993).
In 2017, Petitioner Merle Denezpi, a member of the Navajo Nation, allegedly threatened and sexually assaulted another member of the Navajo Nation in Colorado within the Ute Mountain Ute Reservation. Officers with Bureau of Indian Affairs (an agency within the Department of the Interior) arrested and charged Denezpi with assault and battery under the Ute Mountain Ute Code (6 Ute Mountain Ute Code 2 (2010)) and counts of terroristic threats and false imprisonment under federal regulations (25 C.F.R. §§ 11.402, 11.404).
Denezpi’s first prosecution occurred in the Court of Indian Offenses of the Ute Mountain Ute Agency. In some areas of Indian country, like this one, tribes lack an adequate judicial apparatus to administer their criminal justice system. In these areas, the Bureau of Indian Affairs, an agency within the Department of the Interior, operates Courts of Indian Offenses pursuant to 25 C.F.R. § 11.102 (often referred to as “CFR Courts”).
In the Court of Indian Offenses, Denezpi entered an “Alford plea,” a guilty plea under which the defendant still claims innocence. He was convicted of the tribal law assault and battery charges, but the federal regulatory charges were dropped. Denezpi was sentenced to time served, which amounted to 140 days of imprisonment.
Six months later, a federal grand jury in the District of Colorado indicted Denezpi 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). After his motion to dismiss for Double Jeopardy was denied, a jury found Denezpi guilty, and he was sentenced to thirty years in prison.
The Tenth Circuit affirmed Denezpi’s conviction, reasoning that the Ute Mountain Ute Tribe authorized the use of the Court of Indian Offenses to enforce its own tribal laws. United States v. Denezpi, 979 F.3d 777 (10th Cir. 2020). Because the “ultimate source” of the Court of Indian Offenses was the Ute Mountain Ute’s inherent sovereignty, the Tenth Circuit explained, the subsequent prosecution by the United States government, a separate sovereign, in federal district court did not violate the prohibition against Double Jeopardy under the dual sovereignty doctrine. Id. at 783 (citing Puerto Rico v. Sanchez Valle, 579 U.S. 59, 61 (2016)).
Denezpi, petitioner before the Supreme Court, challenges this distinction and argues that both of his convictions were prosecuted by the same sovereign and should therefore be barred by the Double Jeopardy clause. Brief for Petitioner at 2, Denezpi v. United States, No. 20-7622 (U.S. filed Dec. 7, 2021). Denezpi argues that the prosecutors working for the Bureau of Indian Affairs at the Court of Indian Offenses on his first conviction, and the prosecutors of the U.S. Attorney’s office for his second conviction, both derive their power from the same sovereign authority—the United States federal government. Id. at 12.
The United States, agreeing with the Tenth Circuit, responds that the “ultimate source of power” for the first prosecution results from tribal sovereignty, due to the Ute Mountain Ute’s decision to use the Courts of Indian Offenses to enforce its tribal criminal code. Brief for Respondent at 14, Denezpi v. United States, No. 20-7622 (U.S. filed Jan. 11, 2022). This characterization puts this case squarely within United States v. Wheeler, 435 U.S. 313, (1978), which held that a tribal court prosecution for a tribal offense does not bar a federal prosecution for a federal offense, because tribes are separate sovereigns from the United States government. Id. at 328.. The United States argues that, even though the Bureau of Indian Affairs prosecutors are federal employees, the Courts of Indian Offenses are “simply a mechanism for enforcing tribal sovereignty, citing their use of the tribal criminal code as the source of law as one critical factor. Brief for Respondent at 15.
The disagreement boils down to this question: is the Court of Indian Offenses a separate sovereign from the U.S. federal government such that the dual sovereignty doctrine applies? This question involves tough issues invoking the history of Native American sovereignty and their complicated relationship with the U.S. federal government, and Merle Denezpi’s thirty-year sentence hangs on this delicate balance.
