WASHINGTON (CN) — A lawyer for the federal government faced tough questioning Tuesday as it considered an appeal from a Navajo Nation member who was prosecuted at the tribal and federal levels for the same instance of sexual assault.
Merle Denezpi was accused of sexual assault by another member of the Navajo Nation in July 2017. He alleges the sex was consensual but was charged by the Court of Indian Offenses — a court created when an area does not have its own tribal court — with terroristic threats, false imprisonment and assault and battery.
Denezpi maintained his innocence but felt he would likely be convicted so he reached a plea deal on the assault and battery charge in exchange for the dismissal of the other two charges. He was sentenced to 140 days in prison.
Upon his release, however, federal prosecutors in Colorado then charged Denezpi with aggravated sexual abuse. He claimed the charge violated his Fifth Amendment right to be free from double jeopardy, but his motion was denied and he was convicted by a federal jury and sentenced to 30 years incarceration.
The Supreme Court scheduled arguments in the case for Tuesday after the 10th Circuit affirmed.
“According to the government, if petitioner had gone to trial rather than taking a plea on the tribal offense, and he had been acquitted, the very same prosecutor would have been free the very next day to bring a successive prosecution for a substantively identical offense, this time having honed his case, and refined his proof, based on the lessons learned in the first prosecution," Michael Kimberly with McDermott Will & Emery in Chicago told the justices. "That is not an outcome that the framers of the double jeopardy clause would have thought tolerable.”
While Supreme Court precedent allows individuals to be charged in both tribal court and federal court for the same acts, Denezpi’s lawyer claimed that the Court of Indian Offenses — also known as the CFR court, for the Code of Federal Regulations — is an arm of the federal government because the prosecutor for the Ute Mountain Ute Tribe’s Court of Indian Offenses answers to federal authorities.
“He is not a tribal officer answerable to tribal authorities,” Kimberly said. “He draws his authority in the CFR court to prosecute and the CFR court draws its authority to punish from the Code of Federal Regulations, and from the United States Code authorizing those the promulgation of those regulations.”
Erica Ross, an assistant to the U.S. solicitor general, insisted meanwhile that Denezpi had committed two separate offenses, allowing for two separate sentences, because he violated both tribal laws and federal laws.
“Petitioner’s violent sexual assault violated the laws of both the Ute Mountain Ute Tribe and the federal government,” she said. “Petitioner thus committed two offenses and the double jeopardy cause poses no bar to two prosecutions.”
For nearly two centuries, she argued, the high court has recognized that the clause prohibits two prosecutions only for the same offense.
“Violating the law of one sovereign is not the same offense as violating the law of another,” she said. “The court also has held that 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.”
Chief Justice Roberts pressed Ross on Tuesday as to why the Justice Department was so invested in two prosecutions when the tribal sentence was relatively short.
“It seems unusual that you waste time on serious offense with such a small possible sentence,” Roberts said, contrasting the federal court's 30-year sentence to the roughly four-month sentence imposed in tribal court.
The prosecutor attributed the discrepancy to tribal sentencing limitations, saying a longer U.S. sentence is pretty common.
“Respectfully, I don't think it's a waste of time,” Ross said. “From the tribe’s perspective, the tribe has criminalized this conduct.”
Justice Elena Kagan meanwhile told Ross that the government had a good case with the facts at hand, but that allowing for double prosecution this time could lead to difficulties in the future.
“Suppose you had a case in which the prosecutors for this court were all detailed from the regular U.S. Attorney's Office for a period of a year had established relationships with the U.S. Attorney's Office … that the tribe really had no say in this whatsoever. That it was top-to-bottom, a U.S. attorney-run decision as to which tribal laws would be applied in what ways.”
Ross said none of this would be possible under the current regulations.
“Under the current regulations the tribe can pull out of the system. The tribe can appoint the prosecutor. It can pull its own ordinances out,” she said. “It has a lot of control.”
Kimberly disagreed.
“They don't really have a choice to do away with these courts," Kimberly said, "and so as I said in my opening presentation, [a rule] far more respectful of tribal sovereignty would be simply to allow the tribes to appoint their own prosecutors to act in these courts in the interests of exercising the sovereign authority of these tribes or otherwise just to give them the resources necessary to establish their own systems.”
Justice Neil Gorsuch agreed with Kagan’s point.
“Historically, these courts have not always been so friendly to tribes. They were not created to be friendly to tribes. And the hypothetical Justice Kagan posited was in fact true for much of our history. So why should our double-jeopardy analysis turn on the graces of the government’s regulations today?”
Justice Kagan also poked holes in Kimberly’s argument Tuesday, saying that the tribes had backed the federal government’s brief.
“The tribes seems to think of these courts as very tribal. There's a tribal brief and the tribal brief is on the government side. It says, ‘These are our courts.’ In a way, [your argument is] sort of like saying they're suffering from false consciousness,” she said.
Kimberly responded that, while the tribes rely on these courts to enforce their criminal laws, they can make the sovereign decision to allocate responsibility for enforcement of their laws to the United States. “But when they do, that is — so far as the double jeopardy clause is concerned — as far as their exercise of sovereignty goes,” he said.
“The easy fix here is just to allow the tribes actually to do the job of appointing prosecutors to exercise tribal authority directly in an unambiguous way that is not what's happening here,” Kimberly continued.
Denezpi's case was one of two pertaining to Native American law that the court considered Tuesday. In the other case, the court will decide if the Pueblo, one of only three federally recognized tribes in Texas, is subject to the Lone Star State's gambling rules.
The tribe wants to continue bingo gaming activities at its Speaking Rock Entertainment Center outside El Paso. Texas contends the gaming violates public policy, which subjects the Pueblo to state law. The Pueblo argues this oversight violates their sovereignty.
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