Double jeopardy: Barrett defeats Gorsuch on tribal law

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In a remarkable 6-3 decision written by Justice Amy Coney Barrett, the Supreme Court allowed the federal government to retry and reconvict an Indian tribesman who had already been tried and convicted by a special federal administrative tribunal for Native Americans. Judge Neil Gorsuch wrote a scathing dissent calling this a clear violation of double jeopardy.

The dissent reinforces Gorsuch’s role as the court’s most outspoken defender of tribal sovereignty, willing to speak out against historical injustices against American Indians. Meanwhile, the 6-3 result hints that a landmark 2020 ruling on tribal sovereignty authored by Gorsuch, McGirt v. Oklahoma may be one of the only times Gorsuch gets a majority for his views on the matter.

That case, decided before Barrett appeared in court, invoked tribal sovereignty to block the application of Oklahoma’s criminal law in much of the state. Today’s conservative majority is apparently concerned about criminal law enforcement in tribal areas – a concern that could have produced a different outcome in the McGirt case. Barrett’s vote will be crucial in a case the judges will decide in the coming weeks that takes into account the consequences of the 2020 decision.

The legal process behind the current case, Denezpi v. United States, is quite bizarre – which unfortunately isn’t all that unusual when it comes to legal interactions between the US government and tribal rulers. This is the Indian Offenses Court, set up in 1883 by the Home Office.

The court tries crimes established by the department through regulation — not crimes enacted by Congress. Its members are appointed and can be removed by the Secretary of the Interior. It is called a “CFR court” because it is a creation of the Code of Federal Regulations, where all federal regulations are recorded. CFR courts have jurisdiction in places where tribal rulers have not established their own courts.

One type of crime the court can try includes the violation of an “approved” tribal offense – that is, a crime defined by a tribal ruler that the Department of the Interior approves. Merle Denezpi, a member of the Navajo Nation, sexually assaulted a woman, also a member of the Navajo Nation, while they were visiting the Ute Mountain reservation. He was convicted by a CFR court of assault and battery under Ute Nation laws and sentenced to 140 days in jail.

Six months later, the Justice Department charged Denezpi with the federal felony of aggravated sexual abuse — for the same act. He was convicted again, and this time sentenced to 30 years in federal prison. Clearly, the Justice Department believed that the sentence handed down by the CFR court did not match the seriousness of the crime.

On the face of it, this result looks like a clear violation of double jeopardy, which under the Constitution says you can’t be convicted twice of “the same offence.” Barrett’s opinion found a way to allow the second conviction. In general, according to Supreme Court precedent, double jeopardy does not apply when different sovereign nations prosecute the same offence.

Barrett felt, broadly, that the CFR court was applying the law of sovereign power of the Ute Nation, while the federal court that later convicted Denezpi was applying the sovereign power of the federal government. The deeper motivation was, presumably, to allow federal criminal law to apply in cases like Denezpi’s, where tribal law prescribes much lower penalties.

Gorsuch rejected Barrett’s logic, pointing out that the CFR tribunal is a creation of the US government and US law, and applies Ute law only in accordance with the US government’s choice to do so. Because the same ruler made law for both trials, Gorsuch said, double jeopardy was violated. Judges Sonia Sotomayor and Elena Kagan agreed with her opinion.

To support his argument, Gorsuch pointed to the origins of the CFR tribunal. Originally, the court was officially supposed to “civilize the Indians” by making them “renounce savage and barbarous practices”. The original regulations that were to be enforced by the court forbade “ancient heathen dances”; the “arts of prestidigitation” of healers; and some traditional mourning practices.

Gorsuch’s legal argument was that these regulations showed that the court belonged to the US government, not the tribes. His rhetorical argument was that the court operates within the convoluted legal framework created by the US government to dominate Native Americans, take away their sovereignty and suppress their cultures.

The most significant finding of the case is that Barrett voted to uphold the conviction, thereby underscoring an interest in enforcing non-tribal criminal law in Indian Country. In the 2020 McGirt case, where Gorsuch delivered a significant symbolic blow to tribal sovereignty, he was joined only by Justice Ruth Bader Ginsburg and the other liberals on the court.

In April, judges heard oral argument in a case asking whether federal law prohibits applying Oklahoma criminal law to a non-Indian defendant in areas of tribal sovereignty identified with McGirt. The outcome is likely to be close, and we’ll know before too long.

Barrett might just be the swing vote. Her opinion in the Denezpi case increases the likelihood that she will vote to allow Oklahoma’s criminal law to apply to non-Indians, to justify the interests of such application in the face of tribal sovereignty.

Read more about the Supreme Court opinion from Bloomberg:

• Supreme Court makes immigration block harder to escape: Noah Feldman

• The Supreme Court has a bad surprise for companies: Noah Feldman

• Supreme Court leak investigation is self-defeating: Stephen L. Carter

This column does not necessarily reflect the opinion of the Editorial Board or of Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is the author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America”.

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