Below is the introduction to “Is the Court of Indian Offenses of Ute Mountain Ute Agency a Federal Agency for Purposes of the Fifth Amendment’s Double Jeopardy Clause? (Denezpi v. United States, Docket 20-7622),” available for download on SSRN.

Introduction

There are 574 federally recognized Indian tribes listed by the Bureau of Indian Affairs (BIA) that possess a formal nation-to-nation relationship with the United States government. Notice, 87 Fed. Reg. 4636-02 (Jan. 28, 2022). Some, but not all of these tribes, operate tribal criminal courts. Scholars and the courts generally use the term tribal courts to encompass tribal courts created by tribal tradition; courts created under a tribal constitution; and Courts of Indian Offenses. Courts of Indian Offenses are defined as “the courts established pursuant to” 25 C.F.R. Part 11, 25 U.S.C. 3602(2); such courts are also known as “CFR courts.”

Criminal jurisdiction in Indian country is complex. See McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). Tribal criminal jurisdiction over Native American Indian offenders is inherent and exclusive, limited only by federal statute. Ex parte Kan-gi-shun-ca, 109 U.S. 556 (1883). This jurisdiction extends to Native American offenders whether or not they are enrolled citizens of the tribe in which they are being prosecuted. U.S. v. Lara, 541 U.S. 193 (2004).

Federal criminal jurisdiction within “the Indian country,” is necessarily limited and proscribed by the Indian Major Crimes Act. That statute provides “[a]ny Indian who commits” certain enumerated offenses “against the person or property of another Indian or any other person” “shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” 18 U.S.C. § 1153. State courts generally have no jurisdiction to try Indians for conduct committed in “Indian country” unless Congress says that they do. Negonsott v. Samuels, 507 U.S. 99 (1993).

Thus, federal and tribal courts have concurrent jurisdiction over “major” or serious crimes committed in Indian country, 18 U.S.C. § 1153, unless the federal government has delegated that authority to a state government, 18 U.S.C. § 1162, 25 U.S.C. § 1321 (Public Law 280). Tribal courts exercise exclusive jurisdiction over nonmajor crimes when the victim is Native American, 18 U.S.C. § 1152, and over victimless crimes, U.S. v. Quiver, 241 U.S. 602 (1916); contra U.S. v. Sosseur, 181 F.2d 873 (7th Cir. 1950). After Chief Justice William Rehnquist’s decision in Oliphant v. Suquamish, tribal courts have no power to prosecute or punish non-Indians. 435 U.S. 191 (1978). With this sketch of criminal jurisdiction in Indian country in mind, it becomes clear that the answer to the double jeopardy question raised in this case will apply only to Native Americans.

The tribe in this case, the Ute Mountain Ute Tribe, operates a court system through a Court of Indian Offenses (CFR Court), an entity established by the BIA under the Code of Federal Regulations. The CFR Court enforces both the Ute Mountain Ute Code and the Code of Federal Regulations (CFR). The issue lies in whether the CFR Court is a tribal entity or a federal entity. If the CFR Court is a federal instrumentality, then there are not two separate sovereigns—jeopardy attaches with the first conviction and the Double Jeopardy Clause would prohibit the second prosecution. If the CFR Court is a tribal entity deriving its power from inherent tribal sovereignty, then the dual-sovereignty doctrine would apply, and the second prosecution in federal court would not be barred by the Double Jeopardy Clause.

Notably, the U.S. Constitution does not apply to tribal governments, as the tribes predate both the United States and its Constitution. Talton v. Mayes, 163 U.S. 376 (1896). Instead, the Indian Civil Rights Act (ICRA) applies a modified version of the Bill of Rights to tribal governmental actions, which includes a double jeopardy prohibition. 25 U.S.C. § 1302(a)(3).