Who’s really in charge? When we ask that question, we seek to know the underlying authority behind certain actions. We look to confirm that authority’s legitimacy to act as it did.
The Supreme Court sought to answer that question in Denezpi v. United States, decided Monday. In so doing, the court displayed the complicated relationship between the U.S. government and American Indian tribes.
The case involved two convictions of Merle Denezpi, a member of the Navajo Nation. Both crimes — assault and battery and “aggravated sexual abuse in Indian country,” both against a woman of the Navajo Nation — occurred on the Ute Mountain Ute reservation.
The question concerned whether these two convictions together violated the Fifth Amendment’s double jeopardy clause. That clause says, “No person shall … be subject for the same offense to be twice put in jeopardy of life or limb.” This clause keeps a government from prosecuting a person repeatedly for the same infraction. The court recently ruled that states and the national government could prosecute and convict for the same action without violating the clause. Each government was sovereign and created a distinct crime. One action could violate both, facing prosecution for two different offenses despite springing from one deed.
Denezpi argued that his two convictions both came from the national government. All agreed the second conviction came from the national government. But what about the first offense for assault and battery? Denezpi argued this action also came entirely from the national government based on who prosecuted and judged the allegations. Those who prosecuted the case were hired by the Bureau of Indian Affairs. They argued before a “Code of Federal Regulations court,” which is appointed by the Interior Department’s assistant secretary for Indian affairs. For the same government to prosecute and convict based on one action violated the double jeopardy clause, he argued.
This approach may have cost Denezpi a chance to win the case, as the argument missed the real point behind the double jeopardy clause. Justice Amy Coney Barrett, writing for the majority, rightly argued that who prosecuted and judged did not matter. The issue came down to the sovereign power of legislating — who really made the laws under which Denezpi was convicted. The second conviction came under the Major Crimes Act, a set of clearly federal regulations. She then pointed out that the regulation against assault and battery came from the Ute Mountain Ute Code, a set of tribally written regulations. She thus argued that the first conviction originated from the Ute Mountain Ute tribe’s sovereign power, one distinct from the national government.
Since Denezpi essentially ceded this point, he lost. Two sovereign sets of lawmakers made one action prosecutable twice for two distinct offenses, regardless of who prosecuted and convicted. But Justice Neil Gorsuch’s dissent pointed out the better, relevant argument on Denezpi’s behalf. Gorsuch contested the assumption that Denezpi’s first conviction ultimately came from American Indian regulations and thus sovereignty. Instead, he made a persuasive case that the real power, the real sovereignty behind the assault and battery charges resided in the national government.
Gorsuch, too, admitted that the American Indian tribe had written the assault and battery regulation. But he argued that the national government’s regulatory regime had “assimilated” this and other tribal codes, using their language but exercising its own legislative power. To show the real authority behind the laws, he made several points. For one, a federal official must approve any tribal crime for it to have a binding effect. This requirement showed that national, not tribal power, made the regulation truly binding and thus really a law. For another, the criminal code under which the Ute Mountain Ute’s regulation existed included regulations written by federal officials. Gorsuch argued that this code’s mixture of tribal and federally written regulations only made sense as a cohesive whole if the authority of all ultimately came from the national government’s legislative power.
Ultimately, however, it was Gorsuch who made this case, not Denezpi. So, sadly, we won’t know how Gorsuch’s argument would have fared. That is a loss.
Who’s in charge? We need to know for the sake of the Constitution, the double jeopardy clause, and the liberty both seek to protect.
Adam Carrington is an associate professor of politics at Hillsdale College.
