The United States has a long, troubling, and weird history with Native Americans, to say the least. I won’t go into all that here, but this case does revolves around our relationship with Native Americans and how they’re brought to justice in the United States.
In general, to make up for a lot of the ways we wronged Native Americans, the US Government attempts to let them govern themselves where it’s seen as feasible and proper. One way they do this, is by first designation certain parts of the country as Native American reserves, where only Native Americans can live, and then allow them to have their own laws, police, courts, etc., to handle crimes within the reserve.
It’s why you see a lot of casinos on Native American lands, because they know it’s profitable as fuck, brings in a shit ton of tourism, and since they can make their own laws within states that otherwise might not allow such casinos, they can do whatever the fuck they want. They’re grown-ass men and women.
As you may have guessed, some of these lands are pretty spread out and rural in nature, and so occasionally, the tribes don’t have the scratch needed to create their own courts to handle shit in those areas. So the United States tries to help them out by establishing a Court of Indian Offences. It operates like a Native American court, applying their rules, but is a US Government entity.
On the face of it, it might seem like they have basically the same court system other states might have, but that’s not quite true. Apparently, it’s like a kiddie court, with kiddie sentences, so the US Government can look at them and be like, “Aww, that’s cute. Look at them governing themselves.” But the reality was that it was anything but a normal state or local court system.
Back in 1968, congress passed the Indian Civil Rights Act. In this act, it limited their right to impose sentences in such courts for just one year. That’s right. One fucking year. So if they made a law against murder, and you violated it…one fucking year.
I think the idea was, that they would handle tribal offences, misdemeanors, and shit like that, but bigger capitol offences would be handled by the federal government, I guess. I wasn’t even born in 1968, so I don’t fucking know. But anyway, eventually, they bumped the limit to allow for sentences of up to three years.
Now that you understand that, let’s get into the case. Back in 2017. Navajo tribe member Merle Denezpi, apparently had an erection he didn’t know what to do with, and decided to impose it on an unnamed reservation resident.
He entered what’s called an “Alford Plea.” That basically means, “Yo, dude. I didn’t fucking do it. But that evidence you got against me, it’s pretty fucking hard to overcome. And if I go to trial, I suspect y’all will find my guilty and ‘hang an innocent man’, or some shit. So I’m just going to plea as if I am guilty, accept what you throw at me, even though I’m totally not fucking guilty, and save y’all a trial. But let’s be clear, I am totally not admitting I did this shit. OK?”
Apparently, there’s quite a disparity in offences between Native Americans on reservations, and everywhere else in America. Those natives are some rapy mother fuckers (no pun intended) it seems, and have a much harder (also no pun intended) time controlling their erections. Pretty sad when you think about it. I guess when you try to maintain some level of an antiquated culture, you also maintain the antiquated idea that women aren’t to be treated equal, and you can just take them when you want them.
So Denezpin got 140 days for his misplaced erection of doom Alford plea, and that was that.
For a little while, anyway.
Because about six months later, his victim was like, “140 days? That’s whack. This mother fucker raped me with his dick of doom, and I’m going to the Americans and narc on your ass.”
So a federal grand jury was like, “Well, this is some compelling evidence his erection was wreaking havoc on the reservation, we’re going to have to bust this motherfucker.” And so they did.
Apparently, they really were none too pleased with his mastery over his own erection, and decided it was worth 30 years in prison. None of this punk-ass 3 years or less, nonsense. This is a man’s court!
So Denezpin was like, “Allow me to tell y’all about this thing you call a constitution. In it, there’s phrases like “double jeopardy.” Well, I’ve already been convicted of this shit in your stupid fucking substitute Indian court for kids, so you can’t convict me again!”
But the United States was like, “Bro, that’s not a real court. You know that, right? It’s like the church softball league of courts. Nobody really gives a fuck. Your dick is out of control, and we need to put that shit on ice. So, come talk to us in thirty years.”
Denezpi appealed in district court and lost. He then appealed in the 10th circuit and lost again. He’s on a bad streak, these days. So here he is at SCOTUS hoping these fine nine folks will protect his constitutional rights.
As arguments began, counsel Michael Kimberly for Denezpin opened with this:
Thank you, Mr. Chief Justice, and may it please the Court: The Double Jeopardy Clause implicates two distinct exercises of sovereign authority: first, the authority to say what an offense is, and, second, the authority to put an individual in jeopardy for committing an offense. This Court has consistently assumed the importance to the dual-sovereignty doctrine of both expressions of sovereign power.
The analysis thus asks not only whether the two law-giving entities draw their authority from separate sovereigns but also whether the two law-enforcing entities do so. The government disagrees.
It says that the separateness of the offense-defining entities is all that matters.
But that position would invite the precise abuses that the Double Jeopardy Clause was intended to prevent, and the CFR courts themselves provide the evidence. Assault, for an example, is an offense under both tribal law and the BIA’s regulatory criminal code. According to the government, if Petitioner had gone to trial rather than taking a plea on the tribal offense and he had been acquitted, the very same prosecutor would have been free the very next day to bring a successive prosecution for a substantively identical offense, this time having honed his case and refined his proof based on the lessons learned in the first prosecution.
That is not an outcome that the framers of the Double Jeopardy Clause would have thought tolerable. In arguing otherwise, the government focuses on a single word, “offense,” which it takes entirely in isolation and to which it applies rigid dictionary definitions.
But the Bill of Rights prevents not only transgressions of the amendment’s literal terms but also governmental efforts to circumvent their protections. Blockburger itself embodies this anti-circumvention principle.
It holds that technically different defenses codified in different code sections comprising different elements nonetheless may constitute conceptually the same offense for double jeopardy purposes when, for example, one is a lesser included of the other. And our position is that the same Blockburger rule ought to apply anytime a single sovereign undertakes successive prosecutions, regardless whether separate sovereigns have defined the respective offenses. And I welcome the Court’s questions.
Justice Thomas opened interrogations by giving the hypothetical that everything being the same, but instead of the original charge being in the federal substitute court for native Americans, it was in an actual Indian court. Would that be double jeopardy?
Counsel Kimberly agreed it would not be, because those are separate sovereigns. Like basically, a state and federal government charging separately.
So then Thomas was like, “then what the fuck is the difference? I mean, I know I’m old, but I don’t get it. Just because we created a stand-in court for you? That court is using your rules and shit, and is effectively your court. They’re not using federal government rules.”
Then, Justice Barrett chimed in early on with this question for the petitioner:
Why aren’t you making the argument that the tribal crimes have been assimilated as federal crimes? Because, if that were true, then you have two federal crimes and you’re just looking at Blockburger, right, even under the government’s theory.
Do you think that would be a winning argument if you made it?
I guess I should first explain Blockburger. It was an old SCOTUS case from the prohibition era, where some dude was sent up the river on multiple drug charges, where he sold drugs to the same dude on multiple days.
He argued this was double-jeopardy because it was the same drug being sold to the same dude, but the court didn’t agree with him. Why? In that case, they established a double-jeopardy test that has since become known as the Blockburger test. It basically goes like this. Are there elements in one charge that aren’t present in the second charge? If not, then it’s a double-jeopardy situation. So since one offense occurred one day, and one was on the other day, they’re two different elements (the dates), and therefore are not double jeopardy.
Anyway, counsel Kimberly and Justice Barrett hashed this question out in a way that suggested neither one of them understood the other for a minute or two, but they essentially got to the point. Counsel Kimberly basically said, we think these cases have the same elements, and that they’re being tried by the same sovereign, in this case, the federal government. That’s why we think it’s double jeopardy.
We don’t give a fuck about any of this other technical mumbo jumbo people are arguing.
Justice Breyer, understanding that this was a substitute court, wanted to probe about whether this was effectively a tribal court when he asked:
Imagine you are a CFR prosecutor, you’ve been appointed by the federal government but confirmed by the tribe, I take it, and now you want to bring a case.
Do you have to go to Washington or somewhere or the U.S. Attorney and say, can I do it?
His point being, that they may be a rent-a-court from the federal government, but the driver is still the tribe.
They debated this point back and forth a while, too. Counsel agreed that they basically acted like a tribal court. But his argument was that they derived their power from the federal government, not the tribe. In his argument, that’s the only thing that matters.
Justice Roberts, being quite skeptical of this approach, threw this argument at counsel Kimberly:
Counsel, I don’t understand why it’s so problematic to have different federal officials with different perspectives on a particular matter and why that necessarily means that they should be regarded—why that is pertinent on the double jeopardy question. You know, in the federal government, the EPA and the Army Corps of Engineers often have very different ideas about environmental matters, and, yes, at the end of the day, they answer to one authority and that’s controlling. But I don’t know why it’s so surprising that here you would say to one federal official, okay, we want you to represent the interests of the Indian tribe in their courts and their priorities, and that—the idea that he’s the same as a U.S. Attorney with a different set of priorities, I’m not sure that follows.
But counsel Kimberly was like, “Dude, are you aware of any other situation where a federal official is answerable to some other authority than the federal government? I’m sure as fuck not.”
After the petitioner’s wrapped up their arguments, in comes counsel for Biden Incorporated, Emily Ross who had this to say:
Mr. Chief Justice, and may it please the Court: Petitioner’s violent sexual assault violated the laws of both the Ute Mountain Ute Tribe and the federal government.
Petitioner thus committed two offenses, and the Double Jeopardy Clause poses no bar to two prosecutions. For nearly two centuries, this Court has recognized that the clause only prohibits two prosecutions for the same offense and that violating the law of one sovereign is not the same offense as violating the law of another. The Court also has held that the tribes and the federal government are separate sovereigns for these purposes because they derive their power to prescribe conduct from different sources of authority. Indeed, there’s no question in this case that if Petitioner had been convicted of his tribal offense in a tribally operated court, his double jeopardy claim would fail, no matter how much assistance that fed — that tribally operated court received. Petitioner argues for a different result here only because the Ute Mountain Ute Tribe made the sovereign choice for its tribal code to be enforced in a Court of Indian Offenses.
But the Double Jeopardy Clause focuses on the offense, and it is silent as to the form of prosecution or the identity of the prosecutor. Reflecting the clause’s text, this Court’s decisions have likewise focused on the ultimate source of authority for the offense, which here is unquestionably tribal, as I take Petitioner to concede. And the Court has rejected similar inquiries that would turn on a sovereign’s functional autonomy, explaining that they would lead to unclear and inconsistent results. But even if the nature of the court or the prosecutor mattered, Petitioner would fail his own test.
The authority for Petitioner’s first prosecution derived from the tribe’s preexisting power to prosecute offenses between Indians, which the tribe still possesses today. The tribe has simply made the sovereign choice for the time being, which it can change, to use a Court of Indian Offenses to help enforce its laws.
That exercise of the tribe’s sovereignty warrants respect under the Double Jeopardy Clause, as every relevant sovereign, including the tribe itself, has argued to this Court. I welcome the Court’s questions.
Justice Thomas, having seniority, was the first to chime in and question counsel Ross.
He was like, “Um, can you explain why the fuck Rapy McRaperson only got 140 days in Native American Rent-A-Court, but then the federal court hit this out-of-control dick-wielding monster 30 years?”
The nature of his argument was to understand why they wasted time on the first trial, which was so fucking lenient, when there was clearly a much bigger prosecution to be had. As I alluded to earlier, the native American courts are largely to prosecute specific native American laws which are generally capped at one year, whereas capital crimes go to the regular US federal courts.
Counsel Ross was like, “Well, that’s kind of our point. We have laws against assault, which he committed, and then you guys handle that rape shit, which is much more serious assault. Two separate crimes, and thus, no double jeopardy.”
The government never argued that they were separate acts or events, mind you. Just separate statutory offenses. Like when a dude commits a crime, and they hit him with a list of shit, but all he really did was just one bad act that broke a lot of laws.
She also went on to argue that their more simple crime and resulting trial was a good way to put this rapy fuck in jail quickly, while federal prosecutors took time to build their bigger case on the separate offense, and put this fucker away for the time him and his unruly dick deserve.
As she finished that argument up, Justice Roberts, hit her with an uppercut, when he interrupted her with this:
…or one reason to do is to get a dry run on the federal trial, right? There’s a lot at stake here.
The sentence shows that.
You want to make sure you have as effective a prosecution as you can, so, you know, run a prosecution through the CFR court, see what evidence they have, whatever, and then take a much stronger case when there’s more at stake.This argument he’s making is precisely why double jeopardy is prohibited.
But counsel Ross was like, “None of these federal prosecutors were at the first trial, and were taking notes or some shit. So I see your point, but that didn’t happen here.”
But Justice Roberts was like, “But they could have been, and that’s my fucking point.”
Justice Gorsuch, seemingly unimpressed with these separate-sovereign shenanigans was like, “Even if you are separate sovereigns, and we accept that reasoning, these cases fail that Blockburger test, and there’s no rule that we have to adhere to separate sovereigns, do we? It seems to me like this is clearly double jeopardy by any standard, and you fucking well know it. So why should we let you get away with this shit, just because it’s two different government entities, when both are bound under the constitution of the United States?”
Justice Sotomayor was having none of Counsel Ross’ argument, either. She was like, “I’ve got six cases in the back of my fucking head, where we’ve decided that this dual-sovereign shit doesn’t have to be the rule. That Justice Roberts is fucking right. You’re basically getting a dry run of the federal case, so y’all can practice, before you really go after this rapy fuck. You should’ve just done the fucking federal trial, and you damn well know it. Now we’re in a situation where your dumb ass is forcing us to potentially let this dude walk on a rape, because you decided to hit him with a lesser charge first, when we all agree him and his dick should be in prison for a long fucking time. What the fuck is wrong with you?”
Justice Sotomayor also hit counsel Ross with a ten ton hammer when she was like, “The first trial was The United States v. Denezpi,” not “The Tribe v. Denezpi.” So it seems like your dual sovereign argument is fucking bullshit, is it not?”
Justice Breyer started to grill counsel Ross on how the tribes even control this shit, if it’s them being the sovereign as she argues.
She explained that the tribes basically rented the rent-a-court of their own volition, so they’re running the fucking show.
I don’t know if I ever mentioned this before, but justice Kagan fucking loves to argue. She lives for that shit. So she was like, “Who the fuck are these prosecutors?” She left out the word fuck, but that was otherwise, literally her question. And the “fuck” was obviously implied.
She went on to ask this, as to the nature of the question:
You know, you can imagine a couple of different systems.
You know, one is very tribe-centric.
The tribe gives a list to the BIA and the BIA says those look like good people.
Or, on the other hand, you could imagine a world in which they were all detailed from the U.S. Attorney’s Office.
Or you could imagine things in between. What are they?
Because in her eyes, if the Federal Government was directing all this shit, it’s not really the tribe acting like a sovereign, is it? She also seemed to take issue with the idea that their system is all over the map. While a tribal council approves these idiots by a 2/3 vote, they seem to do whatever the fuck they want, with how they find these yahoos to run this shit. In this case, the prosecutor was a federal prosecutor acting at the behest of the tribe. Why don’t they have one simple rule, that the prosecutor must be a tribe member, appointed by the tribe, so it’s consistent?”
But counsel Ross was like, “Listen, I’m sick of your argumentative bullshit, Kagan. Just because it COULD BE a system that double-jeopardy rules were designed to prevent, doesn’t mean it fucking is. So far, there’s no evidence of that at all. This fuckwad was tried against tribal laws first, then federal laws second. End of story. So back the fuck up off me with this noise.”
Justice Gorsuch, being ever the friend of the native American community, finished up questioning counsel Ross with this:
So I just want to make sure I understand your position, that the Assistant Secretary could create his own court, appoint his own prosecutor, tell him to report to the Department of Justice, appoint the judge, and then curate the tribal code and choose which tribal offenses can be prosecuted, and there would be no double jeopardy problem, right?
It was quite clear, he questioned the idea that somehow the tribe was guiding this shit, and somehow the federal government had nothing to do with it, except that the entire prosecution and court just happen to work for the federal government.
But counsel Ross was like:
I think that is right, Justice Gorsuch, with a very serious and substantial caveat, that it would depend on whether the tribe retained the authority to not have a tribal code that is enforceable in the Court of Indian Offenses.
In Rebuttal, counsel Kimberly came back, and basically said, “Look, the tribe doesn’t really have the right to tell the federal government to fuck off and let us handle this. If the tribe doesn’t set up it’s own court, the federal government basically forces this shit on us. So if you don’t want a double-jeopardy situation, just give the tribe the money it needs to set up a court in these podunk areas. Don’t force us to take your people.
In a split, non-partisan, six to three decision, where Breyer and Gorsuch traded ideological places, SCOTUS sided with the United States. They didn’t seem to opine too much on the jurisdictional issue of whether a Court of Indian Offenses could be the first conviction in a double-jeopardy issue where the US federal courts would be the second. So it’s hard to say if they even agree on that underlying point that they’re both technically federal courts or not. Instead, they focused on the constitution’s use of the word “Offence.”
Justice Barrett wrote the majority opinion. Their argument was pretty basic. The two crimes in the two courts were different. The first one was assault and battery under tribal law. The other was aggravated sexual assault (aka rape) under federal law. Even if all the facts (referred to as elements) of both crimes are identical, they’re two different offences, and therefore double jeopardy doesn’t apply, since the constitution classifies double-jeopardy by calling them two separate offences.
They basically focused on the idea that because the constitution says “Offence” and not act or something like that, and because the tribal law has one statute, and federal another, those are two different offences in the majority’s mind, even if they were the exact same act.
I’m guessing that the idea of a rapist getting 140 days of time served is not something that they want to just let walk, anyway.
Justice Gorsuch, who’s never met a Native American he doesn’t like, and rarely if ever rules against them, sided with Justice Kagan and Sotomayor in his dissent, writing, “Are you fuckheads stupid, or what? It was the exact same act, and the same time and place, involving the same people. He’s literally being charged for the same thing twice. Here, have a fucking law dictionary. Look up double jeopardy, and learn what the fuck you’re talking about. This colorful argument about the word “offences” you’re using violates the fuck out of the principle of double-jeopardy, and you damn well know it. I can’t even believe we have to point this shit out.”