The Tribe Doesn’t Have Control over This Situation
Video Transcribed: The Supreme Court rules Indians can be prosecuted twice for the same crime. I’m Tulsa attorney, James Wirth and we’re talking about a new United States Supreme Court opinion, that was handed down on June 13th of 2022. It is the case of Denezpi versus the United States.
And it deals with issues of double jeopardy in Indian law. So essentially the circumstance, in this case, this defendant was charged with a sexual assault. The defense was that it was consensual and he is an Indian. It occurred on Indian territory.
This is more relevant now since now, half of Oklahoma is now considered to be Indian territory where the state lacks jurisdiction under McGirt to prosecute Indians. So we see a lot more of these going to tribal courts or to federal courts.
And that’s kind of what’s relevant here. So this occurred within tribal territory. So it could not be prosecuted in state court. Of course, this case does not come from Oklahoma, comes from the Ute Mountain Reservation. So outside of Oklahoma. But that tribe did not have a tribal court.
And for tribes that don’t have a tribal court, the federal government through the secretary of the interior has created CRF courts. And those are courts that prosecute tribal offenses on behalf of the tribe, but it’s not actually done by the tribe for tribes that do not have a court system.
Now, those tribes could create a court system and then opt out of that, but some still have not done so, or have not done so. And in this case, it is the Utah reservation tribe that does not have a court. So what happened here is they were prosecuted first in the CRF court and they were determined to be, this person was determined to be guilty of one count and was sentenced to 140 days imprisonment for that.
After he’d completed his time, however, the federal government picked it up for prosecution in a regular federal court and charged him for the same events. And ultimately from that, he got a 30-year sentence. So first by the CRF court, he got 140 days then by the federal government’s normal district court, he got 30 years. So the question was appealed up to the United States Supreme Court, which was basically well, isn’t this double jeopardy.
And previously there’s been precedents that have held for a long time, what they call a dual sovereignty docket. And even though some justice on the Supreme Court, particularly noted in this dissent, judge Gorsuch wants to undo the dual sovereignty doctrine completely.
That is the law of land at this point. And what it says is that as long as the charges are by the separate dual sovereign, so one’s by the state, if you can get prosecuted for a crime in the state court, and then the same, if it’s applicable in the federal court. And previously we’ve had holdings, you can be prosecuted in tribal court. And then for the same offense, you can be prosecuted in federal court.
So the dual sovereign doctorate allows that, but this case is different because this isn’t a regular tribal court where it’s run by the tribe. And it’s the people who perhaps vote for who the chief is that appoints who the judge is and maybe the prosecutor is, and that’s the person that’s prosecuting under their own code that the federal government doesn’t have control over.
That would be a regular tribal case. We’ve determined that is a separate sovereign from the federal government. So double jeopardy does not apply and can be prosecuted in both. This is different though because it’s a CRF court.
So what the court was having to decide is that is the CRF court considered to be a court that is separately sovereign from the federal government for prosecution. And ultimately the court decided that it is a separate sovereign. It’s treated like it is a tribal court and therefore it does not violate double jeopardy.
This guy can be sentenced to 140 days, serve that and then get a new trial in federal court over the same facts and get a 30-year sentence. But there is a dissent in this that is filed by Judge Gorsuch who argues very strongly, and I think persuasively, ultimately I think Judge Gorsuch has the better opinion and it should have been decided that way as opposed to the majority.
And what he says is that, although this is a CRF court that is prosecuting tribal crimes, as they’ve been accepted by the CRF court system, the Department of Interior, is not operating as a separate sovereign because ultimately the judge, the prosecutor, and even what laws they prosecute and don’t prosecute is all decided within the federal system.
The tribe doesn’t have control over this. It’s all federal and therefore it should be treated as a federal court, even though it’s a CRF court prosecuting instead of the tribe prosecuting. And therefore it’s the feds that prosecuted him twice. And under that circumstance, that would be a violation of double jeopardy.
That’s my opinion on it. That’s judge justice Gorsuch’s opinion on it, but ultimately the majority went the other way, found it to be that they are technically prosecuting, adopted code from the tribes in this case. And therefore they’re treating it as if it is a tribal prosecution finding the dual sovereignty doctrine does apply and it is not double jeopardy and it can be punished twice for the same crime.
If you’ve got any questions about this case, or you’re dealing with a case that’s in tribal court, CRF court, or anywhere in Oklahoma, you’re going to want to talk to a McGirt attorney about that privately and confidentially. To speak with somebody in my office you can get that scheduled by going online to makelaweasy.com.
