United States District Court, D. Colorado
ORDER DENYING MOTION TO DISMISS ON DOUBLE JEOPARDY
E. Blackburn United States District Judge
matter before me is defendant Merle Denezpi's
Motion To Dismiss on Double Jeopardy
Grounds[#29],  filed January 6, 2019. Mr. Denezpi
maintains indictment in this case is duplicative of his prior
conviction by the Court of Indian Offenses of the Ute
Mountain Ute Agency and thus constitutes double jeopardy. The
government filed a response (see
[#30], filed January 15, 2019). Having considered the motion
and response, and being apprised of the parties'
arguments and the relevant authorities, I deny the motion.
17, 2017, Mr. Denezpi and V.Y. traveled from Teec Nos Pos,
Arizona,  to Mr. Denezpi's girlfriend's home
in Towaoc, Colorado. Once inside the house, Mr. Denezpi
allegedly barricaded the door and, by physical force and
threats, forced V.Y. to engage in a nonconsensual sexual act.
Tribal authorities arrested Mr. Denezpi the following day and
charged him with one count of assault and battery in
violation of Title 6, Ute Mountain Ute Code, Section 2; one
count of making terroristic threats in violation of 25 C.F.R.
§ 11.402; and one count of false imprisonment in
violation of 25 C.F.R. § 11.404. On December 6, 2017, Mr.
Denezpi entered an Alford
to the assault and battery count and was sentenced to time
months later, a federal grand jury indicted Mr. Denezpi on
one count of aggravated sexual abuse in Indian Country.
See 18 U.S.C. §§
2241(a)(1)-(2) & 1153(a). Mr. Denezpi claims this
prosecution violates the Fifth Amendment proscription against
double jeopardy because it was imposed not by a tribal court
but by a so-called “CFR court, ” which, Mr.
Denezpi argues, is an arm of the federal government and not a
separate sovereign. Because this argument misunderstands the
source and nature of the CFR courts' authority, I reject
Double Jeopardy Clause of the Fifth Amendment provides that
no person “shall . . . be subject for the same offence
to be twice put in jeopardy of life or limb.”
U.S. Const., Amend. 5. This motion
implicates the dual sovereignty doctrine, an exception to the
general principle of double jeopardy, whereby “a single
act gives rise to distinct offenses - and thus may subject a
person to successive prosecutions - if it violates the laws
of separate sovereigns.” Puerto Rico v. Sanchez
Valle, - U.S. -, 136 S.Ct. 1863, 1867, 195 L.Ed.2d 179
(2016). See also Heath v. Alabama, 474 U.S. 82, 88,
106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (”[W]hen the same
act transgresses the laws of two sovereigns, it cannot be
truly averred that the offender has been twice punished for
the same offence; but only that by one act he has committed
two offences.”) (internal quotation marks omitted). The
determination whether two entities are separate sovereigns
“does not turn, as the term ‘sovereignty'
sometimes suggests, on the degree to which the second entity
is autonomous from the first or sets its own political
course.” Sanchez Valle, 136 S.Ct. at 1867.
Instead, the determination lies in the answer to “a
narrow, historically focused question. . . . whether the
prosecutorial powers of the two jurisdictions have
independent origins - or, said conversely, whether those
powers derive from the same ‘ultimate
source.'” Id. (citing United States v.
Wheeler, 435 U.S. 313, 320, 98 S.Ct. 1079, 55 L.Ed.2d
303 (1978)). “The inquiry is thus historical, not
functional - looking at the deepest wellsprings, not the
current exercise, of prosecutorial authority.”
Id. at 1871.
I turn to history. In the time before the United States
became a nation, “the tribes were self-governing
sovereign political communities, possessing (among other
capacities) the inherent power to prescribe laws for their
members and to punish infractions of those laws."
Wheeler, 98 S.Ct. at 1872 (internal citations and
quotation marks omitted). After the United States was formed
and acquired tribal lands, the tribes became “domestic
dependent nations, ” id.; see also
Cherokee Nation v. State of Georgia, 30 U.S. 1, 17, 8 L
Ed. 25 (1831) (Marshall, C.J.), and Congress assumed
"plenary authority to limit, modify or eliminate the
[tribes'] powers of local self-government,"
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56, 98
S.Ct. 1670, 1676, 56 L.Ed.2d 106 (1978). Thus, “in the
exercise of the powers of self-government, as in all other
matters, the . . . tribes[ remain] subject to ultimate
federal control.” Wheeler, 98 S.Ct. at 1088.
courts were created by the Indian Department Appropriations
Act of 1888. See Oliphant v. Suquamish Indian Tribe,
435 U.S. 191, n. 7, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). At
first, all tribal courts were CFR courts. In keeping with the
federal government's then extant policy of assimilation
on the Indian tribes, the Secretary of the Interior, through
the Bureau of Indian Affairs (“BIA”),
“exerted a heavy influence on these courts”
through the promulgation of regulatory codes and the
appointment of Indian judges who were responsible to the BIA.
See Vincent C. Milani, The Right to Counsel in
Native American Indian Tribal Courts; Tribal Sovereignty
& Congressional Control, 31 Am. Crim. L. Rev. 1279,
the passage of the Indian Reorganization Act of 1934
(“IRA”) “signaled a major shift in federal
Indian policy from assimilation to self-determination. Along
with a reduced BIA role and increased authority delegated to
the tribes, the IRA paved the way for tribes to develop
tribal courts and phase out the C.F.R. courts.”
Id. Today, most tribes have established tribal
courts. See 25 C.F.R. § 11.104 (setting forth
criteria for creation of tribal court). Only seven CFR courts
- including those administered by the Ute Mountain Ute Agency
- remain in operation. See Tribal Law and Policy
Institute, Tribal Court Clearinghouse, Tribal Courts
Courts) (last accessed January 18, 2019). Although not tribal
courts, CFR courts still “function as tribal courts;
they constitute the judicial forum through which the tribe
can exercise its jurisdiction until such time as the tribe
adopts a formal law and order code.” Tillett v.
Lujan, 931 F.2d 636, 638 (10th Cir. 1991)
(citing 25 C.F.R. §§ 11.1(d) & (e)).
that background, I turn to the matter before me.
Long-standing Supreme Court precedent makes clear that while
Congress may limit or prescribe the way in which tribal
courts may operate, the right to punish crimes occurring on
tribal lands derives from the tribes' “primeval
sovereignty” which “has never been taken away
from them, either explicitly or implicitly, and is
attributable in no way to any delegation to them of federal
authority.” Wheeler, 98 S.Ct. at 1088-89. The
Wheeler decision, however, examined the authority of
a tribal court. The Court specifically noted that it had no
occasion to determine the precise issue presented here -
whether CFR courts derive their authority to punish crimes
committed on their lands from the inherent sovereignty of the
tribe or, alternatively, whether that authority comes only
via the auspices of the federal government through the Code
of Federal Regulations. See Id. at 1088 n.26.
the CFR courts “retain some characteristics of an
agency of the federal government, ” Tillett,
931 F.2d at 640, the logic of
Wheeler and its progeny clearly
indicates that the CFR courts' power to punish crimes
occurring on tribal lands derives from their original
sovereignty, not from a grant of authority by the federal
Indian courts were first established in the 19th
century, all such courts were CFR courts. The
development of tribal courts came about more than 50 years
later. Yet the Wheeler Court did not say that the
tribal courts' powers to punish crimes within their
jurisdictions were returned to them by the Secretary
of Interior once the tribal court was created and the prior
CFR court thereby extinguished. Instead, the Court recognized
that such powers were part of the tribes' original
sovereignty, which had never been extinguished, despite the
exercise of congressional “defeasance” as to
other aspects of tribal authority. Wheeler, 98 S.Ct.
at 1088-89. See also Sanchez Valle, 136 S.Ct. at
1872 (“But unless and until Congress withdraws a tribal
power - including the power to prosecute - the Indian
community retains that authority in its earliest form. . . .
A tribal prosecution, like a State's, is attributable in
no way to any delegation . . . of federal authority.")
(citation and internal quotation marks omitted).
regulating Indian courts further supports this conclusion.
The Indian Civil Rights Act, 25 U.S.C. §§ 1301 -
1341, “recognize[s] and affirm[s]” the
“inherent power of Indian tribes . . . to exercise
jurisdiction over all Indians.” 25 U.S.C. §
1301(2). Although enacted in response to decisions limiting
the tribes' authority to prosecute non-member Indians,
see United States v. Lara, 541 U.S. 193, 199, 124
S.Ct. 1628, 1632-33, 158 L.Ed.2d 420 (2004), that statement
of legislative intent is not explicitly limited to tribal
courts. The comments made in connection with the adoption of
the legislation incorporating this language add ballast to
the notion that Congress perceives the tribes' criminal
jurisdiction over their own lands to be part of their
inherent sovereign authority.
the Courts of Indian Appeals long have recognized that CFR
courts exercise the inherent powers retained by the tribes ...