A case headed to the Supreme Court puts Native tribal sovereignty on the line

​U.S. Supreme Court, 2021
U.S. Supreme Court, 2021

On February 22, the Supreme Court will hear arguments in Denezpi v. US to determine whether the federal government can prosecute a Navajo tribe member, Merle Denezpi, for a crime the Court of Indian Offenses of Ute Mountain Ute Agency has already convicted him of.

While the normal liberal impulse is to argue that a federal prosecution after a tribal conviction would violate double jeopardy, because we want to support an individual defendant’s criminal procedure rights, the implications of such an argument would have problematic outcomes for the tribal authority of Courts of Indian Offenses.

As co-director of the NYU-Yale American Indian Sovereignty Project Maggie Blackhawk said, this case is “about who decides in the context of overlapping governments and a historical and ongoing American colonial project. It is a case about whether the US will further that project – in the name of ‘rights,’ as it once did for ‘civilization.’”

Merle Denezpi committed sexual assault against another Navajo tribal member on the Ute Mountain Ute Reservation. Denezpi submitted an Alford plea, whereby he doesn’t have to admit to the criminal offense in court, and was convicted of a tribal-law assault-and-battery count in a Court of Indian Offenses, or CFR Court.

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After conviction, a federal grand jury in the District of Colorado indicted Denezpi for aggravated sexual abuse in Indian Country. Denezpi is challenging that indictment by claiming that Courts of Indian Offenses, as opposed to Tribal Courts, derive their authority from the federal government and therefore a federal prosecution would violate double jeopardy.

The district court denied the motion based on the “dual sovereignty” doctrine, under which the Double Jeopardy Clause does not apply to prosecutions brought by different sovereigns, such as the federal government and a tribe.

If the Supreme Court agrees with Denezpi, they will undermine the agency and tribal authority of CFR Courts and make an already difficult fight to protect Native women from sexual assault all the more difficult.

In a brief filed by Amanda L. White Eagle and the NYU-Yale American Indian Sovereignty Project, the history of these courts and their authority is well explained to show the need for the Supreme Court to rule against Denezpi.

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If the court ruled the federal prosecution violated double jeopardy, it would also rule that CFR Courts derive their authority from the federal government rather than the tribes themselves.

Courts of Indian Offenses, now often called CFR courts so as not to use the more colonialist name, were initially created in the 19th century as part of an assimilationist project by the federal government.

However, in practice they did not serve to enforce an assimilationist colonialist project. Instead they often enforced tribal law through tribe elected judges without concern for federal regulation.

The brief emphasizes that like many forced attempts at assimilation, the formalized federal regulations in Indian New Deal in 1935 “shifted the courts from implements of assimilation into manifestations of self-determination.”

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Many contemporary tribal courts, established through tribal constitutions, trace their origins to the earlier Courts of Indian Offenses. The two courts are functionally similar with the main difference being that CFR courts “receive direct federal financing and logistical assistance.”

However, despite this minor involvement by the federal government, the only issue to determine whether double jeopardy applies is the “ultimate source” of the “power to prosecute,” according to Puerto Rico v. Sanchez Valle.

Therefore, again, if the Supreme Court sides with Denezpi, it will be undermining the tribal authority of all CFR courts.

While not directly at issue in the argument the Supreme Court will consider for Denezpi’s case, one can’t ignore the possible implications of prosecuting sexual assault against Native women as a result of this case.

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Native women are some of the most vulnerable to sexual and domestic violence and the jurisdictional labyrinths to prosecute crimes on reservations is part of the reason why.

The above mentioned brief outlines a long legislative history to show that the federal government passed laws to formalize its jurisdiction to prosecute tribal members who committed certain crimes. Such laws would not be necessary if tribal courts derived their authority from the federal government because that would make such jurisdiction automatic and the laws would be redundant.

However, while both the federal government and tribal authorities can prosecute crimes committed on reservations by tribal members, only the federal government can prosecute crimes committed on reservations by non-tribal members.

In Oliphant v. Suquamish, the Supreme Court ruled that Indian courts do not have any criminal jurisdiction over non-tribal members. This has left a huge loophole for non-tribal members to commit crimes on reservations and particularly to get away with domestic and sexual violence against Native women.

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Federal authorities are spread thin and do not have a good history of protecting Native women from sexual violence, even if they technically have authority to do so in these situations.

Last June, in United States v. Cooley, the Supreme Court unanimously held that tribal authorities can at least detain and investigate non-tribal members who are suspected of committing a crime, which could help in both investigating sexual violence and chipping away at Oliphant.

A proposed update to VAWA, the Violence Against Women Act, would give tribal nations the legal authority to prosecute crimes, including domestic violence and sexual assault, without requiring them to turn cases over to federal prosecutors.

While Denezpi’s challenge to tribal authority doesn’t undermine this fight on its face, after all he is a tribal member who was prosecuted for sexual assault, any challenge to tribal authority in criminal matters could have far reaching consequences.

Additionally, how do we consider this case in the context of extreme conservative attacks on tribal sovereignty?

If decided for Denezpi, would the challenge to tribal authority truly stop at CFR courts? Or would such a decision serve to undermine any tribal authority that could be argued was intertwined with federal authority?

The Supreme Court has also agreed to hear Brackeen v. Haaland challenging the constitutionality of the Indian Child Welfare Act. ICWA has been a target of conservatives for years to attack the sovereignty of tribes by twisting the Equal Protection Clause.

The Indian Child Welfare Act was passed to correct a long history of child removal and cultural genocide by requiring all efforts be made to keep Native children with their tribe.

Conservatives argue the federal law privileges Native people on a racial basis, violating the Equal Protection Clause, while Native people argue that ICWA acknowledges them as a political identity with sovereignty.

While the authority of a tribal criminal court is obviously not at issue with ICWA, the undermining of tribal authority, sovereignty and political identity obviously is.

Denzepi’s challenge to the tribal authority of CFR courts to argue against the application of “dual sovereignty” seems contained to one type of criminal court on reservations, but the implications challenge the larger authority and sovereignty of Native tribes at a time when conservative challenges to tribal sovereignty are rampant.

While it goes against many of normal liberal instincts, we must support dual sovereignty and the jurisdiction of the federal government to try Denzepi again.

Arguing such a prosecution would violate Denzepi’s rights would only serve to harm the larger project of tribal sovereignty.

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