Sophia Marjanovic at ShutDownDC
Sophia Marjanovic, a citizen of the Fort Peck Tribes, is seen with red face paint as part of a ShutDownDC civil disobedience action near the U.S. Supreme Court on June 13, 2022, calling attention to cases affecting a woman’s right to choose, climate change and other human rights matters. Photo courtesy ShutDownDC
Supreme Court winds down big term with first Indian law ruling
Tuesday, June 14, 2022
Indianz.Com

WASHINGTON, D.C. — The nation’s highest court is winding down a highly controversial term with a ruling hailed by advocates for Native women, the first of three decisions being anticipated in Indian Country.

By a vote of 6-3, the U.S. Supreme Court confirmed that offenders can be held accountable by tribal governments and by the federal government — even if the conduct at issue arises from the same incident. The decision in Denezpi v. United States reaffirms the inherent sovereignty of Indian nations to prosecute crimes on their homelands.

“We are pleased today that the Supreme Court affirmed the inherent right of the Ute Mountain Ute Tribe to implement their sovereign laws to prosecute an offender who attacked a Native woman on the tribe’s own lands,” Lucy Simpson, a citizen of the Navajo Nation who serves as executive director of the National Indigenous Women’s Resource Center, said in a news release on Monday.

Denezpi was being closely watched because of the potential for the decision to undermine the judicial system in Indian Country, where crimes against women, children and elders often go unpunished. In this situation, the Ute Mountain Ute Tribe utilizes a Court of Indian Offenses, also known as a CFR Court, to prosecute crimes.

The NIWRC, along with the National Congress of American Indians, submitted a brief in Denezpi, noting that the Ute Mountain Ute CFR Court acts under the tribe’s sovereign authority. The defendant had argued that the origins of the tribe’s judicial system were rooted in the powers of the United States.

“Tribal nations have the right to exercise their own inherent authority to prosecute crimes committed against women and children, regardless of whether they utilize a CFR court or their own tribal court, and the SCOTUS decision today ensures that tribal prosecutions for such horrific conduct will not be precluded by such meaningless technicalities,” said Simpson.

Indianz.Com Audio: U.S. Supreme Court – Denezpi v. United States – February 22, 2022

The outcome of Denezpi, however, was based on a much simpler basis. Regardless of where Merle Denezpi was prosecuted for abusing a former intimate partner, his successive prosecutions were based on the laws of different sovereigns, Justice Amy Coney Barrett wrote in the majority decision.

In other words, the entire premise of Denezpi’s case — that being prosecuted in a CFR Court and in a U.S. District Court violated the Double Jeopardy Clause of the U.S. Constitution — was outright rejected.

“We need not sort out whether prosecutors in CFR courts exercise tribal or federal authority because we disagree with Denezpi’s premise,” Barrett wrote in her very first Indian law decision since becoming a justice in October 2020.

“The Double Jeopardy Clause does not prohibit successive prosecutions by the same sovereign. It prohibits successive prosecutions ‘for the same offence,'” the newest member of the Supreme Court continued.

“And as we have already explained, an offense defined by one sovereign is different from an offense defined by another,” Barrett concluded.

Barrett’s decision was joined by the four more conservative leaning members of the court: Chief Justice John G. Roberts Jr., along with Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh. All five of these justices were nominated by Republican presidents. Their grouping provided more than enough votes to support the inherent sovereignty of tribal nations in Denezpi.

A sixth vote came from Justice Stephen G. Breyer, a pick of Democratic former president Bill Clinton who happens to be retiring at the end of this term. He is one of the only sitting justices who has seen tribal judicial systems at work, having visited the Navajo Nation and the Spokane Tribe during a trip organized by the National American Indian Court Judges Association some 20 years ago.

Breyer, however, did not write separately to explain whether his knowledge of tribal courts informed his vote in Denezpi, whose decision runs a mere 13 pages.

But another member of the Supreme Court, one with significant experience in Indian law, did offer some notable views. In a 14-page dissent, Justice Neil Gorsuch argued that CFR Courts act under the authority of the United States — not under inherent tribal sovereignty.

“Unlike a tribal court operated by a Native American tribe pursuant to its inherent sovereign authority, the Court of Indian Offenses is ‘part of the federal government,'” Gorsuch asserted, quoting from the Federal Register, the official journal of the United States.

“Really, it is a creature of the Department of the Interior,” Gorsuch wrote in the dissent, referring to the federal agency with the most trust and treaty responsibilities in Indian Country.

According to Gorsuch, this means the majority has failed to resolve the question presented in Denezpi. He believe criminal defendants in Indian Country will still be able to challenge whether CFR Courts act under tribal sovereignty.

“Whether the Court of Indian Offenses enforces federal regulatory offenses rather than tribal offenses remains an open question for other litigants to preserve and pursue — and its answer is clear,” he wrote.

Gorsuch, though, appears to be standing alone when it comes to the precise nature of CFR Courts. Although two of his more liberal leaning colleagues — Justices Sonia Sotomayor and Elena Kagan — agreed with the outcome of his dissent in connection with the Double Jeopardy Clause, they did not sign onto the portion in which he wrote: “By anyone’s account, the Court of Indian Offenses is a curious regime.”

The conservative-liberal split of the Supreme Court will be open to further interpretations as Indian Country awaits decisions in two more cases of interest. Denezpi, which was argued on February 22, is one of three Indian law disputes that were heard during the term that began in October 2021.

Also argued on February 22 was Ysleta del Sur Pueblo v. Texas. The outcome will affect the livelihoods of thousands of people who depend on employment in Indian Country — in this case, gaming establishments operated by the Ysleta del Sur Pueblo, also known as the Tigua Tribe, and the Alabama-Coushatta Tribe, both located in Texas.

Ute Mountain Ute Tribe
“For Your Safety all Tribal and Federal Laws are strictly enforced,” reads a sign welcoming visitors to the lands of the Ute Mountain Ute Tribe in Colorado. Photo: Jimmy Emerson, DVM

The third Indian law case, Oklahoma v. Castro-Huerta, was heard on April 27, which was the last day for oral arguments. The outcome of the highly contentious dispute affects whether tribes in Oklahoma can rely on the U.S. government — as their trustee — to prosecute crimes on their reservations.

But with one of three rulings on the books, advocates for Native women are pleased with the outcome in Denezpi, which holds an offender accountable for abusing a former partner.

“The significance of today’s victory cannot be underestimated,” Mary Kathryn Nagle, a citizen of the Cherokee Nation who was the co-author of the NIWRC and NCAI brief in the case, said on Monday.

“This is the first decision in federal Indian law we have seen authored by Justice Barrett, one of the most recent Justices to join the Supreme Court,” Nagle continued. “Justice Barrett’s majority decision acknowledges that the sovereignty of our tribal nations pre-dates the United States, and furthermore, that the right of the Ute Mountain Ute Tribe to outlaw sexual assault constitutes an inherent right the tribe enjoys as a sovereign government.”

The Supreme Court is set to conclude its current term by the end of June. Additional decisions are expected on Wednesday, and throughout the remainder of the month.

Beyond the caseload, Chief Justice Roberts has ordered an investigation into the unprecedented leak of a draft opinion in a highly controversial reproductive rights case. It is not known when the results of the internal probe will be made public, if at all.

But Native women and their advocates are closely watching the outcome of Dobbs v. Jackson Women’s Health Organization out of concern that a decision will undermine access to medical services of their choosing, especially in light of chronic and historic underfunding of the Indian health care system. Prior rulings of the Supreme Court have upheld the right of women to access an abortion.

U.S. Supreme Court Decision: Denezpi v. United States
Syllabus | Opinion [Barrett] | Dissent [Gorsuch]

U.S. Supreme Court Documents: Denezpi v. United States
Question Presented | Docket Sheet: No. 20-7622 | Oral Argument Transcript

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