Double Jeopardy, Dual Sovereignty, and Enforcement of Tribal Laws

Legal Sidebari

Double Jeopardy, Dual Sovereignty, and
Enforcement of Tribal Laws
June 16, 2022
On June 13, 2022, the U.S. Supreme Court in a 6-3 decision upheld the federal prosecution of a man who
had already been convicted of, and punished for, a lesser-included offense by a Court of Indian Offenses.
Merle Denezpi argued that the U.S. Constitution’s Double Jeopardy Clause should bar the second
prosecution, but the Supreme Court disagreed, holding that the second prosecution was for a separate
offense and thus not constitutionally barred.
Double Jeopardy and the Dual Sovereignty Doctrine
The Double Jeopardy Clause of the Constitution’s Fifth Amendment prohibits any person from being
“twice put in jeopardy of life or limb” for the same offense. This prohibition on “double jeopardy” means
that, generally speaking, a person cannot be prosecuted twice for the same crime. However, two different
sovereign governments may prosecute the same offense without violating the Double Jeopardy Clause;
this is known as the “dual sovereignty” doctrine. The Supreme Court has upheld the ability of the federal
and state governments to prosecute a defendant successively for violating both federal and state laws,
even if those laws seem to criminalize the same conduct. “[W]here there are two sovereigns, there are two
laws, and two ‘offences,’” the Court has explained.
Tribes and Dual Sovereignty
Federally recognized tribes retain inherent powers of limited sovereignty, including a general power to
enforce certain tribal laws against members of federally recognized tribes on tribal lands—a power that is,
in some instances, exclusive of state criminal jurisdiction. In 1978, the Supreme Court affirmed that tribal
and federal prosecutions are brought by separate sovereigns, and therefore are not barred by the Double
Jeopardy Clause.
Most tribal prosecutions are carried out in tribal courts operated by the tribes themselves. Where tribal
courts have not been established, however Federal Courts of Indian Offenses—also called CFR Courts
because they are governed by provisions of the Code of Federal Regulations—may exercise the
jurisdiction on behalf of those tribes. (An “Indian” is defined in the relevant regulations as a member of a
federally recognized tribe.) Tribes without tribal courts may pass tribal ordinances, which become
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enforceable by the CFR Courts after approval by a Department of Interior official. Unless a tribal
ordinance conflicts, CFR Courts may also enforce a list of crimes defined in the regulations. Five CFR
Courts currently serve 16 of the 574 federally recognized tribes.
In Denezpi, the Supreme Court faced the question of whether the Double Jeopardy Clause permitted both
a CFR Court and a federal district court to prosecute a crime. Denezpi, a member of a federally
recognized tribe, committed a violent sexual assault on another tribal member within the boundaries of
the Ute Mountain Ute Reservation. The Ute Mountain Ute Tribe had jurisdiction, but did not have its own
tribal court. In a CFR Court, Denezpi pleaded guilty to violating a tribal assault and battery ordinance
passed by the Ute Mountain Ute Tribe, and received a sentence of time served (140 days’ incarceration).
Thereafter, a federal prosecutor brought charges against Denezpi in federal district court for aggravated
sexual abuse in violation of the Major Crimes Act. A jury convicted Denezpi, and the court sentenced him
to 30 years’ imprisonment. Denezpi challenged that second prosecution and sentence, arguing it was
barred by the Double Jeopardy Clause. Although the CFR Court was enforcing a tribal ordinance,
Denezpi said, CFR Court and its prosecutors are controlled by the Bureau of Indian Affairs, and his CFR
Court prosecution was therefore a federal prosecution to which he could not be subjected twice.
Supreme Court Decision
The Supreme Court disagreed with Denezpi, instead upholding the U.S. Court of Appeals for the Tenth
Circuit’s conclusion that the second prosecution was not barred by the Double Jeopardy Clause. Justice
Amy Coney Barrett wrote the Court’s opinion, which focused largely on the language of the Double
Jeopardy Clause and the meaning of “offense.” Even assuming that Denezpi had been twice prosecuted
by the United States (a point which the Court declined to examine), what mattered was whether the
offenses were the same. As the Court put it, “the Double Jeopardy Clause does not prohibit successive
prosecutions by the same sovereign. It prohibits successive prosecutions ‘for the same offence.’” When
two offenses are defined by separate sovereigns, the Court explained, those offenses are inherently
different. “[T]he sovereign source of a law is an inherent and distinctive feature of the law itself,” so “an
offense defined by one sovereign is necessarily a different offense from that of another sovereign.” The
fact that the source of Denezpi’s first conviction was a tribal ordinance, according to the Court majority,
meant that violation of a federal statute was a separate offense not barred by the Double Jeopardy Clause.
Justice Neil Gorsuch dissented, reiterating his view that the dual sovereignty doctrine “is at odds with the
text and original meaning of the Constitution.” In a portion of the dissent joined by Justices Elena Kagan
and Sonia Sotomayor, Justice Gorsuch recounted the history of the Courts of Indian Offenses,
highlighting the United States’ involvement in developing, staffing, defining the jurisdiction of, and
overseeing those bodies. Accordingly, he wrote, the “historical wellsprings” of the Courts of Indian
Offenses’ authority “lie not in the Ute Mountain Ute or any other Tribe, but in the halls of the Department
of the Interior.” Because “[f]ederal agency officials played every meaningful role” in the first prosecution,
the dissent found the majority opinion’s distinction between the offenses unpersuasive.
In a portion of his dissent not joined by the other dissenting justices, Justice Gorsuch called the Court of
Indian Offenses “a curious regime,” created by the executive branch without any reference to legislative
authorization. “[O]ne might wonder,” Justice Gorsuch wrote, “how an executive agency can claim the
exclusive power to define, prosecute, and judge crimes—three distinct functions the Constitution
normally reserves for three separate branches.” Because the defendant in Denezpi did not raise these
questions—including “whether the Constitution permits executive officials rather than a judge and jury to
try him for crimes”—those questions remain unanswered by the courts.

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Considerations for Congress
Should Congress wish to insulate the CFR Courts from future constitutional challenges, such as those
identified by Justice Gorsuch, it could consider legislation to affirm or authorize them, adding at least a
legislative imprimatur to the executive branch’s creation. Conversely, Congress could consider legislation
eliminating the CFR Courts or prohibiting federal prosecutions for offenses already prosecuted by the
CFR Courts.
Given that Denezpi did not address whether the federal prosecution would have been precluded if the
CFR Court had convicted the defendant of a regulatory offense rather than a tribal ordinance violation,
Congress could consider limiting CFR Courts’ jurisdiction to offenses rooted in tribal law. Congress
could also consider a range of alternative measures to enable tribes that have not established their own
courts to prosecute tribal offenses. These could include designating additional funding and resources to
enable more tribes to establish tribal courts, or working with tribes to authorize a different, less federally
controlled body to enforce tribal laws on behalf of tribes that choose to delegate that aspect of their
sovereignty.

Author Information

Mainon A. Schwartz

Legislative Attorney




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