Document Type
Article
Publication Date
2-22-2022
Abstract
This case, which examines the application of the U.S. Constitution’s Double Jeopardy Clause, sits within the intersection of tribal courts, federal Indian law, and federal criminal law and jurisdiction. Essentially, the question is whether a Native American Indian can be punished twice for the same conduct—first in tribal court and a second time in federal court.
Publisher
American Bar Association
Publication Title
Preview of United States Supreme Court Cases
Volume
49
Issue
5
First Page
7
Last Page
12
Keywords
Denezpi v. United States, Tenth Circuit
Recommended Citation
Barbara L. Creel,
Is the Court of Indian Offenses of Ute Mountain Ute Agency a Federal Agency for Purposes of the Fifth Amendment’s Double Jeopardy Clause?,
49
Preview of United States Supreme Court Cases
7
(2022).
Available at:
https://digitalrepository.unm.edu/law_facultyscholarship/888
Comments
This case presents the Court with an opportunity to resolve the question left unanswered in Wheeler: “whether [a CFR Court] is an arm of the Federal Government or, like the Navajo Tribal Court, derives its powers from the inherent sovereignty of the tribe.” Thus, the case is the first to provide a constitutional analysis of whether the double jeopardy protections afforded under the U.S. Constitution apply to the Native American prosecuted in federal court under the Major Crimes Act after his conviction and sentence in this particular type of tribal court—the Code of Federal Regulations Court. To answer the question, the Supreme Court must look to the origins of the BIA Court of Indian Offenses, and finally determine their status in the framework of federal judiciary or tribal/federal Indian law.
As set forth above, CFR Courts are not Article III courts. The CFR Courts have their origins in settler-colonialism as “disciplinary instrumentalities” to civilize the Indian. “Currently the CFR Courts are the tribal criminal justice system of choice by a little more than a dozen of the 574 federally recognized Indian tribes.” The opinion will impact Denezpi to determine whether his 30-year sentence under the Indian Major Crimes Act will stand. It will also determine the Court’s view of the CFR Courts within the federal/tribal jurisdictional scheme and their authority within it.
Ultimately, the decision will determine whether Native Americans will remain the only persons who can be twice punished based upon their race and political status.