Restoration Magazine

On January 18, 2022, the National Indigenous Women’s Resource Center (NIWRC) filed an amicus brief in the United States Supreme Court in support of the United States in United States v. Merle Denezpi. The NIWRC’s brief was joined by the National Congress of American Indians (NCAI), the oldest and largest national organization comprised of Tribal Nations and their citizens. The petitioner, Denezpi, asked the Supreme Court to address whether a Court of Indian Offenses (“CFR court”) constitutes a federal agency such that the U.S. Constitution’s Double Jeopardy Clause precludes his subsequent prosecution in a United States District Court for the same conduct underlying his conviction in CFR court. In its amicus brief, the NIWRC argued in support of the United States’s position that under the “separate sovereigns doctrine” Denezpi’s dual prosecutions did not violate the U.S. Constitution’s Double Jeopardy Clause. The Supreme Court took up a similar legal question regarding the separate sovereigns doctrine in Gamble v. United States in 2019, a case in which the NIWRC also filed an amicus brief. In that case, the Supreme Court found the separate sovereigns doctrine is constitutional and remains in force (that case concerned dual prosecutions in federal and state courts, and the NIWRC’s amicus brief educated the Supreme Court on the potential implications of a decision eroding the separate sovereigns doctrine).

The Denezpi brief is the NIWRC’s ninth amicus brief filed pursuant to the Violence Against Women Act (VAWA) Sovereignty Initiative, an initiative aimed at educating the courts, including the United States Supreme Court, on the connection between sovereignty and safety for Native women and the concomitant need to protect and preserve VAWA’s restoration of Tribal sovereign authority to prosecute non-Indian offenders. The Denezpi case necessitated the filing of a NIWRC amicus brief since the underlying case involves a sexual assault committed against a Native woman on Tribal lands, and furthermore, because an adverse decision declaring CFR courts to be “federal” would significantly impede the ability of Tribal Nations utilizing CFR courts to protect their women and children from domestic violence and sexual assault.

Background of the Case

Merle Denezpi, a Navajo citizen, was arrested on July 20, 2017, by Ute Mountain Ute Tribal authorities and charged with violating Ute Mountain Ute assault and battery laws, as well as two provisions regarding terroristic threats and false imprisonment of the Code of Federal Regulations, for his July 17, 2017, sexual assault of a Navajo woman. The assault was committed while the two were at Denezpi’s girlfriend’s house on the Ute Mountain Ute Indian reservation near Towaoc, Colorado. Mr. Denezpi entered a plea to the assault charge under Tribal and federal law in CFR court and on December 6, 2017, he was released from Tribal custody for time served.

Six months after Denezpi was released from Tribal custody, he was indicted by a federal grand jury on one count of aggravated sexual abuse in Indian country under federal law. He moved to dismiss the indictment on grounds that it violated the Fifth Amendment’s Double Jeopardy Clause. The United States District Court for the District of Colorado denied Denezpi’s motion and at the trial, he was found guilty of his federal charge and sentenced to 360 months in prison. Denezpi appealed the district court’s decision to the United States Court of Appeals for the Tenth Circuit on two grounds: (1) challenging the denial of his motion to dismiss on Double Jeopardy grounds, and (2) challenging the district court’s denial of his motion to strike certain testimony offered by the victim.

As the United States government and its courts have recognized, Native women experience the highest rates of violence in the United States, constituting a crisis.

On October 28, 2020, the Tenth Circuit issued an opinion in United States v. Denezpi, 979 F.3d 777 (10th Cir. 2020), holding that Denezpi’s subsequent conviction in federal court under federal law did not violate the U.S. Constitution’s Fifth Amendment Double Jeopardy provision because the ultimate source of power behind the CFR court’s prosecution of Denezpi was the Ute Mountain Ute Tribe’s inherent sovereignty, and accordingly, the dual prosecutions are not subject to the Double Jeopardy Clause pursuant to the Supreme Court’s separate sovereigns doctrine. The Tenth Circuit affirmed the District Court’s ruling, denying his motion to strike testimony as well. The Tenth Circuit followed the Supreme Court’s decision in United States v. Wheeler, 435 U.S. 313 (1978), wherein the Supreme Court concluded that Tribes are independent, separate sovereigns and therefore a Tribal conviction does not bar a subsequent federal prosecution. The Tenth Circuit also cited Gamble v. United States, 139 S. Ct. 1960 (2019), in recognizing the continued existence of the separate sovereigns doctrine, generally. In its opinion, the Tenth Circuit applied the same principle from Wheeler to the Ute CFR Court, finding that although Wheeler did not specifically address whether CFR courts are covered under the separate sovereigns doctrine, the Ute CFR Court “derives its power from the inherent sovereignty of the tribe” and therefore the separate sovereign doctrine applies to CFR courts. Denezpi, 979 F.3d at 782. 

The NIWRC Amicus Brief

The NIWRC filed its amicus brief in Denezpi on January 18, 2022, arguing that a conclusion that CFR courts are federal, and not Tribal, would significantly hinder the ability of Tribal Nations to bring charges for sexual assault and domestic violence crimes, which would greatly endanger the safety of Native women and children across Indian Country. The NIWRC’s participation in the case is critical as the underlying criminal act in Denezpi was in fact an act of sexual violence against a Native woman. As the NIWRC noted in the opening of its brief, even though violence against Native women traces its roots to the origins of colonialism, the continued acceptance of violence against Native women in the culture at large is made possible by a legal framework that prevents Tribal Nations from prosecuting most violent crimes committed against Native women and children, necessitating a dual sovereign framework where both CFR courts (acting under inherent Tribal authority) and federal courts can prosecute for crimes committed against Native women and children on Tribal lands.

The amicus brief argued four main points: (1) the current rates of violence against Native women and children constitute a crisis; (2) CFR courts play a critical role in addressing sexual assault and domestic violence crimes committed against Native women and children; (3) jurisdictional and sentencing limitations imposed on Tribal Nations (and therefore CFR courts) renders Tribal-federal collaboration critical for the safety of Native women and children; and (4) excluding CFR courts from the separate sovereigns exception would undermine safety and justice for Native women and children. 

The Current Rates of Violence Against Native Women and Children Constitute a Crisis

First, the amicus brief argued that as the United States government and its courts have recognized, Native women experience the highest rates of violence in the United States, constituting a crisis. In 2016, the Supreme Court itself recognized in United States v. Bryant, 136 S. Ct. 1959, that according to the CDC, “as many as 46% of American Indian and Alaska Native women have been victims of physical violence by an intimate partner.” According to a 2016 report released by the National Institute for Justice, a United States Department of Justice agency, more than 4 in 5 Native people have been victims of violent crime and over 56.1% of Native women report being victims of sexual violence.

The NIWRC then stated that the five States in which CFR courts are presently located, which are home to 91 federally recognized Tribes collectively, experience incredibly high levels of violent crime against Native women: New Mexico, Oklahoma, Colorado, Nevada, and Utah. The states of New Mexico and Utah have recently established their own task forces to specifically combat the Missing and Murdered Indigenous Persons crisis within their borders and Oklahoma has passed legislation to fund a task force for this purpose. Ultimately, the NIWRC argued this crisis plays a toll on Native communities and undermines the sovereignty of Tribal Nations by threatening their health, safety, and welfare. Native people pay the price for this crisis, as seen in the staggering level of post-traumatic stress disorder (PTSD) in Tribal communities.

The ability of Tribal Nations utilizing CFR courts to swiftly prosecute and hold abusers accountable is vital to ensuring the safety of domestic violence victims on their reservations, and the Supreme Court should not follow petitioner Denezpi’s urgings to eliminate these vital avenues of justice in Indian Country.

Jurisdictional and Sentencing Limitations Imposed on Tribal Nations (and therefore CFR Courts) Renders Tribal-Federal Collaboration Critical for the Safety of Native Women and Children

Additionally, the NIWRC’s amicus brief argued the crisis of violence against Native women and children is exacerbated by a complex jurisdictional maze, which both federal and Tribal sovereigns must navigate to determine who can prosecute crimes that victimize Native people. As it stands, federal law dictates that before criminal jurisdiction over a crime committed in Indian country is exercised by a sovereign, there must be a determination of (1) the status of the land where the crime was committed; (2) whether the perpetrator is Indian; and (3) whether the victim is Indian. These fact-determinative issues greatly impede the ability of law enforcement to promptly respond to a domestic violence call, which places Native women and children at enormous risk.

The NIWRC pointed out that federal law severely restricts the ability of Tribal Nations to sentence convicted criminals, which inhibits the assurance of public safety on Tribal lands. The Indian Civil Rights Act prohibits Tribal courts, including CFR courts, from imposing a prison term greater than one year for a criminal offense. The Supreme Court noted in United States v. Bryant, 136 S.Ct. 1954 (2016), that “a year’s imprisonment per offense . . . [is] insufficient to deter repeated and escalating abuse.” Despite this burdensome limitation, the NIWRC argued that at least under the existing “separate sovereigns” framework, there is some punishment for these violent offenses. If the Court were to rule that CFR courts cannot prosecute alongside the federal government, then the “backstop” protection of a Tribal court sentence would no longer exist and many defendants would simply face no time behind bars for their crimes of violence against Native women and children.

CFR Courts Play a Critical Role in Addressing Sexual Assault and Domestic Violence Crimes Committed Against Native Women and Children

Next, the NIWRC highlighted the critical role that CFR courts play in addressing sexual assault and domestic violence crimes committed against Native women and children. In 2020, 51% of assault cases brought in the Southwest Region CFR Court included domestic violence charges, the overwhelming majority of which were not and will likely never be pursued by the United States Attorney’s Office. In one case from the Southwest Region, a Native victim jumped from a vehicle while stopped on a highway to escape an abuser who drove over 50 miles recklessly, while threatening to kill themselves and the victim before she was pursued on foot by the abuser and tackled. In another case from the same Court, a victim’s abuser pursued her into her bedroom to take her cell phone, pinned her on the bed face down with his body, wrenched her arm behind her back, and repeatedly bit her forcefully enough to leave bite marks on her body.

These cases are horrific and justice for these victims should not be placed in jurisdictional limbo because these victims live on the reservation of a small Tribal Nation that continues to use a CFR court. The NIWRC pointed out in its brief that the history of CFR courts shows that the courts initially served a purpose that has now been fully nullified—Congress originally intended CFR courts to be a mechanism to eradicate the governments of Tribal Nations and as a tool for cultural assimilation. Importantly, federal policy surrounding CFR courts changed over the past century and a half, and now the Secretary of the Interior is required to consult with Tribes regarding CFR courts. Today, they are viewed as a mechanism for Tribes to exercise their inherent jurisdiction and sovereignty. The NIWRC argued that the ability of Tribal Nations utilizing CFR courts to swiftly prosecute and hold abusers accountable is vital to ensuring the safety of domestic violence victims on their reservations, and the Supreme Court should not follow petitioner Denezpi’s urgings to eliminate these vital avenues of justice in Indian country.

Excluding CFR Courts from the Separate Sovereigns Exception Would Undermine Safety and Justice for Native Women and Children

Lastly, the NIWRC argued that excluding CFR courts from the “separate sovereigns” doctrine will considerably hinder the effective prosecution of violent crimes committed against Native women and children, which, in turn, undermines safety in Indian country. If Tribes using CFR courts are forced to choose between a CFR court and a federal prosecution, then they will face two alternative, frustrating choices (1) waiting to see if federal charges will be filed against a defendant to allow for a meaningful sentence that matches the severity of the crime, but because Double Jeopardy now applies, they risk losing the possibility of filing any Tribal charges in CFR court in the event of a federal declination because the Tribal statute of limitations will have already tolled; or (2) bringing Tribal charges in CFR court to ensure some sort of justice, thereby precluding the possibility of a subsequent federal prosecution and a meaningful sentence that could deter future violent crimes committed by the same, or additional, offenders.

Unfortunately, if Tribes are forced into this position, Tribes cannot rely upon the federal government to always seek justice for Native victims. Federal declination rates substantiate the harm that may be done if the “separate sovereigns” exception does not apply to CFR courts. In 2019, of the 2,426 Indian country matters, 32 percent were declined by the United States Attorney’s Office. Prosecution is vital to addressing the cyclical nature of domestic violence, which has been demonstrated to increase in severity with each repeated act of abuse. The NIWRC argued it is important for a CFR court to immediately prosecute a violent intimate partner offender under Tribal law and still leave the door open for federal prosecution to achieve a meaningful sentence because often—even when domestic violence victims can escape the relationship—the likelihood of additional violence still increases. Because the overwhelming majority of violence committed against Native women and children is committed by spouses and partners of Native women, a short sentence is likely not to deter them from repeated acts of violence.

Finally, the NIWRC argued that Tribal-federal coordination is critical to safety in Indian country and the separate sovereigns doctrine facilitates this coordination. In May of 2015, the Indian Law and Order Commission released its final report, noting a specific case from the Ute Mountain Ute Reservation where the Denezpi case arose. The report noted that on the Ute Mountain Ute Reservation, when reported homicide rates in 2005-2006 were hundreds of times higher than the statewide rate, Chairman Ernest House, Sr. convened a working group to prevent and combat crime, and focus on better coordination across jurisdictional lines. As a result, violent crimes have fallen in virtually every major category on the Reservation. Ultimately, if CFR courts are classified as federal courts, Tribal Nations will be placed in a dilemma that would not serve a constitutional purpose under the Double Jeopardy Clause and Native women and children will be placed in even greater danger.

The brief was filed on January 18, 2022. The Supreme Court will hear arguments in Denezpi on February 22, 2022. The case will likely be decided before the end of June 2022. 

“Even though violence against Native women traces its roots to the origins of colonialism, the continued acceptance of violence against Native women in the culture at large is made possible by a legal framework that prevents Tribal Nations from prosecuting most violent crimes committed against Native women and children.”

–Julie Combs, Cherokee Nation, Associate Attorney

Pipestem & Nagle, P.C.

LEARN MORE

Visit NIWRC’s VAWA Sovereignty Initiative page to learn more and donate: niwrc.org/vawa-sovereignty-initiative

Listen to Speaking Our Truth Podcast for Change, Episode 22 with Mary Kathryn Nagle at niwrc.org/podcast