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Supreme Court takes up pair of tribal law disputes

The justices agreed to hear a case on the regulation of gambling on Native American land and another centered on whether a conviction in tribal court prevents further prosecution in federal district court.

WASHINGTON (CN) — The Supreme Court added two new cases concerning Native American law to its docket Monday morning, one involving double jeopardy and the other centered on gaming rights.

The double jeopardy case, Denezpi v. United States, asks the court to overturn a 10th Circuit order affirming Merle Denezpi’s conviction for the same crime in the Court of Indian Offenses of Ute Mountain Ute Agency and a district court. The justices must decide whether the tribal court is a federal agency, which would mean a person convicted in that court could not be prosecuted for the same crime in U.S. district court.

In July 2017, Denezpi was accused of sexual assault by another member of the Navajo Nation. He alleges the sex was consensual but was charged by the Court of Indian Offenses — which is 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. 

Following his release, a U.S. district court 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 360 months incarceration. 

Supreme Court precedent allows individual to be charged in both tribal court and federal court for the same acts.

However, Denezpi claims the Court of Indian Offenses – also known as the CFR court, for the Code of Federal Regulations – is an arm of the federal government. In his brief to the high court, he claims the power to prosecute his crimes in the CFR court and the federal district court is the same. 

“The charges Mr. Denezpi faced in the CFR court—coupled with the manner in which those charges were resolved—further support a finding that the CFR court is a quasi-federal court for double jeopardy purposes,” Theresa Duncan, an attorney with Duncan Earnest LLC who is representing Denezpi, wrote in the brief. 

But the federal government claims that because Denezpi recognizes prior precedent regarding tribal courts, his arguments lack merit. 

“Petitioner does not dispute that if he had been prosecuted in a tribal court, there would be no double jeopardy concerns. And his efforts to distinguish the prosecution here lack merit,” Brian Fletcher, acting solicitor general for the Department of Justice, said in the government’s brief.  

The Department of Justice declined to comment further on the case when contacted on Monday morning. Denezpi’s attorney did not respond to questions regarding the case. 

In Ysleta Del Sur Pueblo v. Texas, the high 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. The state contends the gaming violates public policy, which subjects the Pueblo to Texas law. The Pueblo argues this oversight violates their sovereignty. 

"This is an important case involving the sovereignty and self-determination of Native American tribes, and the interpretation of federal statutes protecting those rights," Brant Martin, an attorney for Wick Phillips Gould & Martin LLP who represents the Pueblo, said in an emailed statement.

The Pueblo asked the Supreme Court to review a 1994 decision by the Fifth Circuit in a case referred to as Ysleta I, which granted Texas regulatory jurisdiction over non-prohibited gaming activities on tribal lands, arguing the ruling “deprive[s] the Pueblo of its sovereign authority to regulate its own non-prohibited gaming.”  

The tribes’ argument draws on the Restoration Act, a 1987 law signed by then-President Ronald Reagan aimed at restoring the trust relationship between the federal government and tribes. A provision of this act addressed gaming on tribe lands. The Pueblo argues that the Restoration Act was violated by Ysleta I

“The tension between the Fifth Circuit’s decision and the plain language of the Restoration Act has bred numerous disputes between the tribes and the state of Texas concerning the scope of gaming permitted on their Indian lands,” Martin wrote in the tribe’s petition to the high court. “And Texas has taken this judicial fiat as permission to wrest ever more autonomy and sovereignty from the tribes.” 

Texas argues the confusion alleged by the Pueblo is a result of the tribes not even attempting to follow the Ysleta I order and that its arguments to relitigate the case have been rejected for the last 26 years. 

“The question presented in the most recent chapter in this legal saga is whether the lower courts correctly held that the tribe violated Texas public policy by operating a casino that offers thousands of ‘bingo’ devices that are designed to be virtually indistinguishable from Las-Vegas-style slot machines as well as 24-hour high-stakes, live-call bingo,” Lanora Christine Pettit, principal deputy solicitor general at the office of the Texas attorney general, wrote in an opposition brief

The Department of Justice filed a friend of the court brief urging the Supreme Court to hear the case, which the Pueblo says is of “national importance” because of its connection to the tribes’ sovereignty.

In the amicus brief, acting Solicitor General Brian Fletcher contended that gaming activities should be regulated under the Indian Gaming Regulatory Act, or IGRA. 

“The [Fifth Circuit’s] contrary decision implicates important tribal sovereignty interests and undermines IGRA’s key objectives. This court’s review is therefore warranted,” Fletcher wrote.  

The Texas attorney general’s office did not respond to requests for comment on the Supreme Court’s grant of certiorari.

Per their custom, the justices did not comment on their decision to take up the cases.

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