Denezpi v. United States ( 2022 )

(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DENEZPI v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 20–7622. Argued February 22, 2022—Decided June 13, 2022
An officer with the federal Bureau of Indian Affairs filed a criminal com-
plaint against Merle Denezpi, a member of the Navajo Nation, charg-
ing Denezpi with three crimes alleged to have occurred at a house lo-
cated within the Ute Mountain Ute Reservation: assault and battery,
in violation of 6 Ute Mountain Ute Code §2; terroristic threats, in vio-
lation of 25 CFR §11.402; and false imprisonment, in violation of 25
CFR §11.404. The complaint was filed in a CFR court, a court which
administers justice for Indian tribes in certain parts of Indian country
“where tribal courts have not been established.” §11.102. Denezpi
pleaded guilty to the assault and battery charge and was sentenced to
time served—140 days’ imprisonment. Six months later, a federal
grand jury in the District of Colorado indicted Denezpi on one count of
aggravated sexual abuse in Indian country, an offense covered by the
federal Major Crimes Act. Denezpi moved to dismiss the indictment,
arguing that the Double Jeopardy Clause barred the consecutive pros-
ecution. The District Court denied Denezpi’s motion. Denezpi was
convicted and sentenced to 360 months’ imprisonment. The Tenth Cir-
cuit affirmed.
Held: The Double Jeopardy Clause does not bar successive prosecutions
of distinct offenses arising from a single act, even if a single sovereign
prosecutes them. Pp. 4–13.
(a) The Double Jeopardy Clause of the Fifth Amendment provides:
“No person shall . . . be subject for the same offence to be twice put in
jeopardy of life or limb.” By its terms, the Clause does not prohibit
twice placing a person in jeopardy “ ‘for the same conduct or actions,’ ”
Gamble v. United States, 587 U. S. ___, ___, but focuses on whether
successive prosecutions are for the same “offence.” In 1791, “offence”
meant the violation of a law. See ibid. Because the sovereign source
2 DENEZPI v. UNITED STATES
Syllabus
of a law is an inherent and distinctive feature of the law itself, an of-
fense defined by one sovereign is necessarily a different offense from
that of another sovereign. See id., at ___. The two offenses can there-
fore be separately prosecuted without offending the Double Jeopardy
Clause—even if they have identical elements and could not be sepa-
rately prosecuted if enacted by a single sovereign. See id., at ___, n. 1,
___. This dual-sovereignty principle applies where “two entities derive
their power to punish from wholly independent sources.” Puerto Rico
v. Sánchez Valle, 579 U. S. 59, 68.
Denezpi’s single act transgressed two laws: the Ute Mountain Ute
Code’s assault and battery ordinance and the United States Code’s
proscription of aggravated sexual abuse in Indian country. The Ute
Mountain Ute Tribe exercised its “unique” sovereign authority in
adopting the tribal ordinance. See United States v. Wheeler, 435 U. S.
313, 323. Likewise, Congress exercised the United States’ sovereign
power in enacting the federal criminal statute. See United States v.
Lanza, 260 U. S. 377, 382. The two laws—defined by separate sover-
eigns—proscribe separate offenses, so Denezpi’s second prosecution
did not place him in jeopardy again “for the same offence.” Pp. 4–6.
(b) Denezpi argues that the dual-sovereignty doctrine applies only
when offenses are enacted and enforced by separate sovereigns. He
insists that his second prosecution violated double jeopardy, then, be-
cause prosecutors in CFR courts exercise federal authority, which
means that he was prosecuted twice by the United States. The Court
need not decide whether prosecutors in CFR courts exercise tribal or
federal authority because the Double Jeopardy Clause does not pro-
hibit successive prosecutions by the same sovereign; rather, it prohib-
its successive prosecutions “for the same offence.” Thus, even if
Denezpi is right that the Federal Government prosecuted his tribal
offense, the Clause did not bar the Federal Government from prose-
cuting him under the Major Crimes Act too. The Double Jeopardy
Clause does not ask who puts a person in jeopardy. It zeroes in on
what the person is put in jeopardy for: the “offence.” The Court has
seen no evidence that “offence” was originally understood to encom-
pass both the violation of the law and the identity of the prosecutor.
Denezpi stitches together loose language from the Court’s precedent
to support his position that the identity of the prosecuting sovereign
matters under the dual-sovereignty doctrine. No precedent cited by
Denezpi involves or even mentions the unusual situation of a single
sovereign successively prosecuting its own law and that of a different
sovereign. In any event, imprecise statements cannot overcome the
holdings of the Court’s cases, not to mention the text of the Clause.
Those authorities make clear that enactment is what counts in deter-
Cite as: 596 U. S. ____ (2022) 3
Syllabus
mining whether the dual-sovereignty doctrine applies. Denezpi’s reli-
ance on Bartkus v. Illinois, 359 U. S. 121, is misplaced. At most,
Bartkus acknowledged that successive federal prosecutions for the
same conduct would raise a double jeopardy question, but Bartkus did
not begin to analyze, much less answer, that question.
Denezpi’s remaining arguments are unavailing. Denezpi first points
to the Government’s exclusion of Major Crimes Act felonies from the
federal regulatory offenses enforceable in CFR court in order to avoid
double jeopardy concerns. He asserts that this “limitation borders on
a concession that the Double Jeopardy Clause bars [his] second prose-
cution.” Brief for Petitioner 29. Not so. Federal regulatory crimes are
defined by the Federal Government, so successive prosecutions for a
federal regulatory crime and a federal statutory crime present a dif-
ferent double jeopardy question from the one here.
Next, Denezpi argues that permitting successive prosecutions like
his “does not further the purposes underlying the dual-sovereignty
doctrine,” namely, advancing sovereigns’ independent interests. Id.,at 28–29. Purposes aside, the doctrine “follows from” the Clause’s text,
which controls. Gamble, 587 U. S., at ___–___. In any event, the
Tribe’s sovereign interest is furthered when its assault and battery or-
dinance—duly enacted by its governing body as an expression of the
Tribe’s condemnation of that crime—is enforced, regardless of who en-
forces it.
Finally, Denezpi asserts that the Court’s conclusion might lead sov-
ereigns to assume more broadly the authority to enforce other sover-
eigns’ criminal laws in order to get two bites at the apple. If a consti-
tutional barrier to such cross-enforcement exists, it does not derive
from the Double Jeopardy Clause. Pp. 6–13.
979 F. 3d 777, affirmed.
BARRETT, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, BREYER, ALITO, and KAVANAUGH, JJ., joined. GOR-
SUCH, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ.,
joined as to Parts I and III.
Cite as: 596 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–7622
_________________
MERLE DENEZPI, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 13, 2022]
JUSTICE BARRETT delivered the opinion of the Court.
The Double Jeopardy Clause protects a person from being
prosecuted twice “for the same offence.” An offense defined
by one sovereign is necessarily different from an offense de-
fined by another, even when the offenses have identical el-
ements. Thus, a person can be successively prosecuted for
the two offenses without offending the Clause. We have
dubbed this the “dual-sovereignty” doctrine.
This case presents a twist on the usual dual-sovereignty
scenario. The mine run of these cases involves two sover-
eigns, each enforcing its own law. This case, by contrast,
arguably involves a single sovereign (the United States)
that enforced its own law (the Major Crimes Act) after hav-
ing separately enforced the law of another sovereign (the
Code of the Ute Mountain Ute Tribe). Petitioner contends
that the second prosecution violated the Double Jeopardy
Clause because the dual-sovereignty doctrine requires that
the offenses be both enacted and enforced by separate sov-
ereigns.
We disagree. By its terms, the Clause prohibits separate
prosecutions for the same offense; it does not bar successive
prosecutions by the same sovereign. So even assuming that
2 DENEZPI v. UNITED STATES
Opinion of the Court
petitioner’s first prosecutor exercised federal rather than
tribal power, the second prosecution did not violate the Con-
stitution’s guarantee against double jeopardy.
I
A
In 1882, Secretary of the Interior H. M. Teller wrote to
his Department’s Office of Indian Affairs (now known as the
Bureau of Indian Affairs) to suggest that the Office “formu-
late certain rules for the government of the Indians on the
reservations.” Letter to H. Price, Comm’r of Indian Affairs
(Dec. 2, 1882), in Dept. of Interior, Rules Governing the
Court of Indian Offenses 3–4 (1883). In response, the Com-
missioner of Indian Affairs adopted regulations prohibiting
certain acts and directing that a “Court of Indian Offenses”
be established for nearly every Indian tribe or group of
tribes to adjudicate rule violations. Id., at 5. Given their
basis in what is now the Code of Federal Regulations, the
courts are sometimes called CFR courts.
Today, most tribes have established their own judicial
systems, thereby displacing the CFR courts. See 25 CFR
§11.104 (2021). But some tribes, often due to resource con-
straints, have not. Five CFR courts remain, serving 16 of
the more than 500 federally recognized tribes. Their stated
purpose is “to provide adequate machinery for the admin-
istration of justice for Indian tribes” in certain parts of In-
dian country “where tribal courts have not been estab-
lished.” §11.102. The Department’s Assistant Secretary for
Indian Affairs appoints CFR court judges, called magis-
trates, subject to a confirmation vote by the governing body
of the tribe that the court serves. §11.201(a). The Assistant
Secretary may remove magistrates for cause of his own ac-
cord or upon the recommendation of the tribal governing
Cite as: 596 U. S. ____ (2022) 3
Opinion of the Court
body. §11.202.1 Unless a contract with a tribe provides oth-
erwise, a Department official appoints the prosecutor for
each CFR court. §11.204.
CFR courts have jurisdiction over two sets of crimes. See
§11.114. First, federal regulations set forth a list of offenses
that may be enforced in CFR court. See §§11.400–11.454.
In addition, a tribe’s governing body may enact ordinances
that, when approved by the Assistant Secretary, are en-
forceable in CFR court and supersede any conflicting fed-
eral regulations. §§11.108, 11.449.
B
The reservation of the Ute Mountain Ute Tribe spans
over 500,000 acres in southwestern Colorado, northern
New Mexico, and southeastern Utah. The Tribe has more
than 2,000 members. It has not created its own court sys-
tem, so it makes use of the Southwest Region CFR Court.
The Tribe has, however, adopted its own penal code, which
is enforceable in that court.
A violation of the tribal code lies at the heart of this case.
Merle Denezpi and V. Y., both members of the Navajo Na-
tion, traveled to Towaoc, Colorado, a town within the Ute
Mountain Ute Reservation. While the two were alone at a
house belonging to Denezpi’s friend, Denezpi barricaded the
door, threatened V. Y., and forced her to have sex with him.
After Denezpi fell asleep, V. Y. escaped from the house and
reported Denezpi to tribal authorities.
An officer with the federal Bureau of Indian Affairs filed
a criminal complaint in CFR court. That complaint charged
Denezpi with three crimes: assault and battery, in violation
of 6 Ute Mountain Ute Code §2 (1988); terroristic threats,
in violation of 25 CFR §11.402; and false imprisonment, in
——————
1 The CFR court at issue in this case serves only the Ute Mountain Ute
Tribe. Some CFR courts, however, serve multiple tribes. In that event,
the governing bodies of all affected tribes participate in the confirmation
and removal of magistrates. 25 CFR §§11.201(a), 11.202.
4 DENEZPI v. UNITED STATES
Opinion of the Court
violation of 25 CFR §11.404. Denezpi pleaded guilty to the
assault and battery charge, and the prosecutor dismissed
the other charges. The Magistrate sentenced Denezpi to
time served—140 days’ imprisonment.
Six months later, a federal grand jury in the District of
Colorado indicted Denezpi on one count of aggravated sex-
ual abuse in Indian country, an offense covered by the fed-
eral Major Crimes Act. 18 U. S. C. §§2241(a)(1), (a)(2),
1153(a). Denezpi moved to dismiss the indictment, arguing
that the Double Jeopardy Clause barred the consecutive
prosecution, but the District Court denied the motion. After
a jury convicted Denezpi, the District Court sentenced him
to 360 months’ imprisonment.
The Tenth Circuit affirmed. It concluded that the second
prosecution in federal court did not constitute double jeop-
ardy because the Ute Mountain Ute Tribe’s inherent sover-
eignty was the ultimate source of power undergirding the
earlier prosecution in CFR court. 979 F. 3d 777, 781–783
(2020). We granted certiorari. 595 U. S. ___ (2021).
II
A
The Double Jeopardy Clause of the Fifth Amendment
provides: “No person shall . . . be subject for the same of-
fence to be twice put in jeopardy of life or limb.” The Clause
by its terms does not prohibit twice placing a person in jeop-
ardy “ ‘for the same conduct or actions.’ ” Gamble v. United
States, 587 U. S. ___, ___ (2019) (slip op., at 3). Instead, it
focuses on whether successive prosecutions are for the same
“offence.”
That term, we have explained, “ ‘was commonly under-
stood in 1791 to mean “transgression,” that is, “the Viola-
tion or Breaking of a Law.” ’ ” Ibid.; see, e.g., 2 R. Burn & J.
Burn, A New Law Dictionary 167 (1792) (“OFFENCE, is an
act committed against law, or omitted where the law re-
quires it”). An offense, then, is “defined by a law.” Gamble,
Cite as: 596 U. S. ____ (2022) 5
Opinion of the Court
587 U. S., at ___ (slip op., at 4); see Moore v. Illinois, 14
How. 13, 19–20 (1852). And a law is defined by the sover-
eign that makes it, expressing the interests that the sover-
eign wishes to vindicate. Gamble, 587 U. S., at ___ (slip op.,
at 4); see United States v. Lanza, 260 U. S. 377, 382 (1922)
(“Each government in determining what shall be an offense
against its peace and dignity is exercising its own sover-
eignty, not that of the other”). Because the sovereign source
of a law is an inherent and distinctive feature of the law
itself, an offense defined by one sovereign is necessarily a
different offense from that of another sovereign. See Gam-
ble, 587 U. S., at ___ (slip op., at 4); Moore, 14 How., at 20.
That means that the two offenses can be separately prose-
cuted without offending the Double Jeopardy Clause—even
if they have identical elements and could not be separately
prosecuted if enacted by a single sovereign. See Gamble,
587 U. S., at ___, n. 1, ___ (slip op., at 3, n. 1, 4); cf. Block-
burger v. United States, 284 U. S. 299, 304 (1932) (offenses
defined by a single sovereign are distinct offenses only if
each “requires proof of a different element”).
This dual-sovereignty principle applies where “two enti-
ties derive their power to punish from wholly independent
sources.” Puerto Rico v. Sánchez Valle, 579 U. S. 59, 68
(2016). The doctrine has come up most frequently in the
context of the States. See, e.g., Heath v. Alabama, 474 U. S.
82, 88–90 (1985) (States are separate sovereigns from one
another); Lanza, 260 U. S., at 382 (States are separate sov-
ereigns from the United States). It applies, however, to In-
dian tribes too.
United States v. Wheeler, 435 U. S. 313 (1978), is the sem-
inal case. There, a member of the Navajo Tribe was con-
victed in tribal court of violating a provision of the Navajo
Tribal Code; he was later charged in federal court with vio-
lating a federal statute based on the same underlying con-
duct. Id., at 314–316. Citing the dual-sovereignty doctrine,
the Court rejected Wheeler’s double jeopardy argument.
6 DENEZPI v. UNITED STATES
Opinion of the Court
We explained that before Europeans arrived on this conti-
nent, tribes “were self-governing sovereign political com-
munities” with “the inherent power to prescribe laws for
their members and to punish infractions of those laws.” Id.,at 322–323. While “Congress has in certain ways regulated
the manner and extent of the tribal power of self-
government,” Congress did not “creat[e] ” that power. Id.,
at 328. When a tribe enacts criminal laws, then, “it does so
as part of its retained sovereignty and not as an arm of the
Federal Government.” Ibid. Thus, Wheeler’s prosecution
for a tribal offense did not bar his later prosecution for a
federal offense.
Our reasoning in Wheeler controls here. Denezpi’s single
act transgressed two laws: the Ute Mountain Ute Code’s as-
sault and battery ordinance and the United States Code’s
proscription of aggravated sexual abuse in Indian country.
The Ute Mountain Ute Tribe, like the Navajo Tribe in
Wheeler, exercised its “unique” sovereign authority in
adopting the tribal ordinance. Id., at 323. Likewise, Con-
gress exercised the United States’ sovereign power in en-
acting the federal criminal statute. See Lanza, 260 U. S.,
at 382. The two laws, defined by separate sovereigns, there-
fore proscribe separate offenses. Because Denezpi’s second
prosecution did not place him in jeopardy again “for the
same offence,” that prosecution did not violate the Double
Jeopardy Clause.
B
Denezpi agrees with much of this—that sovereigns define
distinct offenses, that the Tribe and the United States are
separate sovereigns, and that his prosecutions involved a
tribal offense and a federal offense respectively. See Reply
Cite as: 596 U. S. ____ (2022) 7
Opinion of the Court
Brief 3–4.2 But he argues that the dual-sovereignty doc-
trine is concerned not only with who defines the offense, but
also with who prosecutes it. In Wheeler, the defendant was
initially prosecuted in a tribal court; Denezpi, by contrast,
was initially prosecuted in a CFR court. While tribal pros-
ecutors in tribal courts indisputably exercise tribal author-
ity, Denezpi claims that prosecutors in CFR courts exercise
federal authority because they are subject to the control of
the Bureau of Indian Affairs. He concludes that he was
therefore prosecuted twice by the United States. And that,
he insists, violated the Double Jeopardy Clause because
“the dual-sovereignty doctrine does not apply when succes-
sive prosecutions are undertaken by a single sovereign, re-
gardless of the source of the power to adopt the criminal
codes enforced in each prosecution.” Brief for Petitioner 16–
17.3
——————
2 The dissent, unwilling to accept Denezpi’s framing of the case, asserts
that his first conviction was for a federal offense because CFR court reg-
ulations assimilated the Tribe’s assault and battery ordinance. Post, at
6–9 (opinion of GORSUCH, J.). The dissent is right that we do not address
that point. Instead, we take the case as it comes to us: No party pressed
the assimilation argument, here or below, and no lower court addressed
it. Moreover, the answer to the question is not as obvious as the dissent
claims. For example, while the dissent says that the relevant regulations
“could not be plainer,” post, at 6, they are much less clear than the As-
similative Crimes Act, which makes a person who violates a state law on
a federal enclave situated in that State “guilty of a like offense and sub-
ject to a like punishment.” 18 U. S. C. §13(a). Nor, despite the dissent’s
argument to the contrary, is it dispositive that the Assistant Secretary
must approve a tribal ordinance before it can be enforced in CFR court—
the Secretary of the Interior had to approve the Tribal Code at issue in
Wheeler too. 435 U. S., at 327. In short, the assimilation question is
complex, making it particularly imprudent to raise and resolve it
sua sponte as the dissent proposes to do.
3 At times, the dissent suggests that the source of the trial court’s
power, rather than (or perhaps in addition to) the source of the prosecu-
tor’s power, matters in the dual-sovereignty analysis. See post, at 10–
8 DENEZPI v. UNITED STATES
Opinion of the Court
We need not sort out whether prosecutors in CFR courts
exercise tribal or federal authority because we disagree
with Denezpi’s premise. The Double Jeopardy Clause does
not prohibit successive prosecutions by the same sovereign.
It prohibits successive prosecutions “for the same offence.”
And as we have already explained, an offense defined by
one sovereign is different from an offense defined by an-
other. Thus, even if Denezpi is right that the Federal Gov-
ernment prosecuted his tribal offense, the Clause did not
bar the Federal Government from prosecuting him under
the Major Crimes Act too.
1
Denezpi does not even try to reconcile his position with
the text of the Clause. Instead, he presents the dual-
sovereignty doctrine as “a carveout to the rule against dou-
ble jeopardy” and argues that the carveout does not extend
to successive prosecutions by a single sovereign. Brief for
Petitioner 15–17. But Denezpi is wrong to treat the dual-
sovereignty doctrine as an exception to the Clause. Gamble
was very clear on this point: “Although the dual-sovereignty
rule is often dubbed an ‘exception’ to the double jeopardy
right, it is not an exception at all. On the contrary, it fol-
lows from the text that defines that right in the first place.”
587 U. S., at ___ (slip op., at 3). The Clause does not ask
who puts a person in jeopardy. It zeroes in on what the
person is put in jeopardy for: the “offence.” And again, in
1791, “offence” meant the violation of a law. Supra, at 4–5.
We have seen no evidence that “offence” was originally un-
derstood to encompass both the violation of the law and the
identity of the prosecutor.
Treating the identity of the prosecutor as part of the def-
inition of “offence” is as odd as it sounds. An offense has
——————
11. Again the dissent strays from Denezpi’s argument, which has fo-
cused on the source of the prosecutor’s authority. See, e.g., Tr. of Oral
Arg. 9–11.
Cite as: 596 U. S. ____ (2022) 9
Opinion of the Court
always referred to the crime itself, which is complete when
a person has carried out all of its elements. See, e.g., The
Rugen, 1 Wheat. 62, 74 (1816) (“[T]he offence of trading
with the enemy was complete the moment the [ship] sailed
from Savannah with an intention to carry her cargo to
Kingston, in Jamaica”); United States v. Norris, 300 U. S.
564, 574 (1937) (the “crime of perjury . . . is complete when
a witness’s statement has once been made”); Toussie v.
United States, 397 U. S. 112, 117 (1970) (draft registration
“was thought of as a single, instantaneous act to be per-
formed at a given time, and failure to register at that time
was a completed criminal offense”). The law has long rec-
ognized, then, that an offense is committed before it is pros-
ecuted. For example, the Constitution says that “[t]he Trial
of all Crimes . . . shall be held in the State where the said
Crimes shall have been committed.” Art. III, §2, cl. 3; see
Amdt. 6 (“In all criminal prosecutions, the accused shall” be
tried “by an impartial jury of the State and district wherein
the crime shall have been committed”). And Sir Matthew
Hale could say of a man who breaks into a house and steals
something: “[I]f indicted for the burglary and acquitted, yet
he may be indicted of the larciny, for they are several of-
fenses, tho committed at the same time.” 2 History of the
Pleas of the Crown 245–246 (1736). In addition, Chief Jus-
tice Marshall, speaking for the Court, described a section of
the Crimes Act of 1790 as providing that “if manslaughter
be committed in [certain places], the offender may be pros-
ecuted in the federal Courts.” United States v. Wiltberger,
5 Wheat. 76, 98 (1820). So Denezpi’s proposal would put us
in the position of holding that a person’s single act consti-
tutes two separate offenses at the time of commission (be-
cause the act violates two different sovereigns’ laws) but
that those offenses later become the same offense if a single
sovereign prosecutes both. He offers no textual justification
for this nonsensical result.
10 DENEZPI v. UNITED STATES
Opinion of the Court
2
With the text against him, the best Denezpi can do is
stitch together loose language from our precedent. For ex-
ample, we have said that “two offenses ‘are not the “same
offence” ’ for double jeopardy purposes if ‘prosecuted by dif-
ferent sovereigns.’ ” Gamble, 587 U. S., at ___ (slip op., at
2) (emphasis deleted); see Wheeler, 435 U. S., at 329–330
(“Since tribal and federal prosecutions are brought by sep-
arate sovereigns, they are not ‘for the same offence’ ”). In
another case, we stated that “[i]f an entity’s authority to en-
act and enforce criminal law ultimately comes from Con-
gress, then it cannot follow a federal prosecution with its
own.” Sánchez Valle, 579 U. S., at 77; see id., at 62 (“[T]he
issue is only whether the prosecutorial powers of the two
jurisdictions have independent origins”). And we have re-
marked that “the crucial determination [under the dual-
sovereignty doctrine] is whether the two entities that seek
successively to prosecute a defendant for the same course of
conduct can be termed separate sovereigns.” Heath, 474
U. S., at 88.
Read in isolation, these statements help Denezpi’s posi-
tion that the identity of the prosecuting sovereign matters
under the dual-sovereignty doctrine. Read in context, their
helpfulness dissipates. None of these cases involves or even
mentions the unusual situation of a single sovereign suc-
cessively prosecuting its own law and that of a different sov-
ereign. This language appears in the context of the usual
situation: a sovereign (or alleged sovereign) prosecuting its
own laws.4 Because enactment and enforcement almost al-
ways go hand in hand, it is easy to overlook that they are
——————
4 In Puerto Rico v. Sánchez Valle, 579 U. S. 59 (2016), Puerto Rico
sought to enforce its own territorial laws; the question, which we an-
swered in the negative, was whether Puerto Rico was an independent
sovereign from the United States for purposes of the Clause. Id., at 65–
66; see also Waller v. Florida, 397 U. S. 387, 392–395 (1970) (cities are
not separate sovereigns from States).
Cite as: 596 U. S. ____ (2022) 11
Opinion of the Court
occasionally separated. That is particularly good reason to
take the language Denezpi offers with a healthy sprinkling
of salt. Where it was not important to attend to the differ-
ence between enactment and enforcement, it is understand-
able why we did not. In any event, imprecise statements
cannot overcome the holdings of our cases, not to mention
the text of the Clause—and those authorities make clear
that enactment is what counts in determining whether the
dual-sovereignty doctrine applies. See Part II–A, supra.Denezpi points to only one case in which the Court dealt
with an argument in the neighborhood of his. In Bartkus v.
Illinois, 359 U. S. 121 (1959), the defendant argued that his
acquittal in federal court for a federal offense barred his
later conviction in state court for a state offense based on
the same underlying conduct. There was a threshold issue
of whether to analyze the claim under the Fifth Amend-
ment’s Double Jeopardy Clause or the Fourteenth Amend-
ment’s Due Process Clause. The Double Jeopardy Clause
had not yet been incorporated against the States, but the
defendant argued that federal authorities had run his state
prosecution, making it federal action to which the Clause
applied. The Court rejected that argument, seeing no basis
to say that “Illinois in bringing its prosecution was merely
a tool of the federal authorities,” rendering the “state pros-
ecution . . . a sham and a cover for a federal prosecution.”
Id., at 122–124. That resolution meant that the Court had
no occasion to consider whether the Double Jeopardy
Clause would have barred the Federal Government from
separately prosecuting Bartkus for a violation of state law.
Instead, we considered whether Bartkus’ successive federal
and state prosecutions violated due process. See id., at 124.
Bartkus does not give Denezpi much to go on—as Denezpi
himself recognizes. See Brief for Petitioner 16–17 (Bartkus
“suggest[s]” that the dual-sovereignty doctrine will not ap-
ply if “a second prosecution by an apparently separate sov-
12 DENEZPI v. UNITED STATES
Opinion of the Court
ereign is ‘in essential fact’ just a ‘cover’ for a second prose-
cution by the first sovereign”). At most, Bartkus acknowl-
edged that a successive federal prosecution would raise a
double jeopardy question. Yet it did not begin to analyze,
much less answer, that question. In the end, then, Bartkus
is no more help to Denezpi than the other cases on which
he relies.
3
Denezpi advances a few other arguments for why the
Double Jeopardy Clause barred his second prosecution.
None succeeds.
First, he notes that the United States has excluded from
the string of federal regulatory offenses enforceable in CFR
court those “[f]elonies that are covered by the Major Crimes
Act.” 58 Fed. Reg. 54406 (1993). And it has done so “to
avoid the possibility that someone who has committed a se-
rious offense may be immunized from federal prosecution
[under that Act] because of the prohibition against double
jeopardy by a prosecution in a Court of Indian Offenses.”
Ibid. Denezpi asserts that this “limitation borders on a con-
cession that the Double Jeopardy Clause bars [his] second
prosecution.” Brief for Petitioner 29. We disagree. Federal
regulatory crimes are defined by the Federal Government,
so successive prosecutions for a federal regulatory crime
and a federal statutory crime present a different double
jeopardy question from the one presented here.
Next, Denezpi argues that permitting successive prosecu-
tions like his “does not further the purposes underlying the
dual-sovereignty doctrine,” namely, advancing sovereigns’
independent interests. Id., at 28–29. Purposes aside, the
doctrine “follows from” the Clause’s text, which controls.
Gamble, 587 U. S., at ___–___ (slip op., at 3–4). In any
event, the Tribe’s sovereign interest is furthered when its
assault and battery ordinance—duly enacted by its govern-
ing body as an expression of the Tribe’s condemnation of
Cite as: 596 U. S. ____ (2022) 13
Opinion of the Court
that crime—is enforced, regardless of who enforces it.
Finally, Denezpi asserts that the conclusion we reach
might lead to “highly troubling” results. Brief for Petitioner
30–32. He suggests that sovereigns might more broadly as-
sume the authority to enforce other sovereigns’ criminal
laws in order to get two bites at the apple. But if there is a
constitutional barrier to such cross-enforcement, it does not
derive from the Double Jeopardy Clause. As we have ex-
plained, the Clause does not bar successive prosecutions of
distinct offenses, even if a single sovereign prosecutes them.
* * *
Denezpi’s single act led to separate prosecutions for vio-
lations of a tribal ordinance and a federal statute. Because
the Tribe and the Federal Government are distinct sover-
eigns, those “offence[s]” are not “the same.” Denezpi’s sec-
ond prosecution therefore did not offend the Double Jeop-
ardy Clause. We affirm the judgment of the Court of
Appeals.
It is so ordered.
Cite as: 596 U. S. ____ (2022) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–7622
_________________
MERLE DENEZPI, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 13, 2022]
JUSTICE GORSUCH, with whom JUSTICE SOTOMAYOR and
JUSTICE KAGAN join as to Parts I and III, dissenting.
Federal prosecutors tried Merle Denezpi twice for the
same crime. First, they charged him with violating a fed-
eral regulation. Then, they charged him with violating an
overlapping federal statute. Same defendant, same crime,
same prosecuting authority. Yet according to the Court, the
Double Jeopardy Clause has nothing to say about this case.
How can that be? To justify its conclusion, the Court in-
vokes the dual-sovereignty doctrine. For reasons I have of-
fered previously, I believe that doctrine is at odds with the
text and original meaning of the Constitution. See Gamble
v. United States, 587 U. S. ___, ___ (2019) (dissenting opin-
ion) (slip op., at 1). But even taking it at face value, the
doctrine cannot sustain the Court’s conclusion.
I
A
To appreciate why, some background about the Court of
Indian Offenses helps. Unlike a tribal court operated by a
Native American Tribe pursuant to its inherent sovereign
authority, the Court of Indian Offenses is “part of the Fed-
eral Government.” 58 Fed. Reg. 54407 (1993). Really, it is
a creature of the Department of the Interior. Secretary
H. M. Teller opened the court by administrative decree in
1883. As he put it, the court was designed to “civilize the
2 DENEZPI v. UNITED STATES
GORSUCH, J., dissenting
Indians” by forcing them to “desist from the savage and bar-
barous practices . . . calculated to continue them in sav-
agery.” 1 Report of the Secretary of the Interior X (June 30,
1883). Apparently, the Secretary and his contemporaries
worried that too many Tribes were under “the influence of
medicine men” and “without law of any kind,” and they
thought the Interior Department needed to take a strong
hand to impose “some rule of government on the reserva-
tions.” Id., at X–XI.
Toward these ends, the Secretary instructed the Commis-
sioner of Indian Affairs to promulgate “certain rules” to es-
tablish a new “tribunal” and to define new “offenses of
which it was to take cognizance.” Id., at XII. The resulting
“court” was composed of magistrates appointed by the De-
partment who could “read and write English readily, w[ore]
citizens’ dress, and engage[d] in civilized pursuits.” Report
of the Commissioner of Indian Affairs 28 (1892) (1892 Re-
port). The Department likewise appointed officers charged
with investigating the crimes it created. Federal Office of
Child Support Enforcement, IM–07–03, Tribal and State
Jurisdiction To Establish and Enforce Child Support 10
(2007). And the regulatory criminal code the Department
produced outlawed everything from “old heathenish
dances” and “medicine men” and their “conjurers’ arts” to
certain Indian mourning practices. Rules Governing the
Court of Indian Offenses 3–7 (1883) (1883 Rules). The De-
partment’s new criminal code also assimilated “the laws of
the State or Territory within which the reservation may be
located,” and instructed that sentences for assimilated of-
fenses should match those imposed by state or territorial
law. 1892 Report 30. Unsurprisingly, tribal members often
regarded these courts as “foreign” and “hated” institutions.
V. Deloria & C. Lytle, American Indians, American Justice
115–116 (1983).
Over time, as the federal government’s attitude toward
Cite as: 596 U. S. ____ (2022) 3
GORSUCH, J., dissenting
Native American traditions changed, the Department ad-
justed certain aspects of its regime. Now, some of the old
federal offenses aimed at punishing tribal customs are
gone. But the regulations still list many crimes created by
federal agency officials. 25 CFR §§ 11.400–11.454 (2021).
And the regulations continue to assimilate other crimes too.
Instead of assimilating state and territorial crimes, federal
regulations today assimilate tribal crimes. They do so, how-
ever, only if and to the extent those tribal crimes are “ap-
proved by the Assistant Secretary [of] Indian Affairs or his
or her designee.” § 11.449. As before, any federal punish-
ment for assimilated offenses may not exceed the sentence
provided for by the assimilated (here, tribal) law. Ibid.
Even today, prosecutors continue to be hired and controlled
by the Department unless a Tribe opts out of that arrange-
ment. § 11.204. Likewise, the Department retains full au-
thority to “appoint a magistrate without the need for con-
firmation by the Tribal governing body.” 85 Fed. Reg.
10714 (2020). And the Department retains the power to re-
move these adjudicators. See 25 CFR § 11.202.
B
These arrangements turned out to play a pivotal role in
Mr. Denezpi’s case. In July 2017, he traveled to visit his
girlfriend in Towaoc, Colorado, a town within the Ute
Mountain Ute Reservation. His traveling companion, a
woman known as V. Y., alleged that during the visit Mr.
Denezpi sexually assaulted her. Mr. Denezpi claimed the
encounter was consensual. Both Mr. Denezpi and V. Y. are
members of the Navajo Nation.
After a brief investigation, an agent of the Department of
the Interior swore out a criminal complaint on behalf of the
“United States of America, Plaintiff.” App. 9–10. Federal
officials charged Mr. Denezpi with three offenses: terroris-
tic threats, false imprisonment, and assault and battery.
Federal regulations define the first two offenses. See
4 DENEZPI v. UNITED STATES
GORSUCH, J., dissenting
25 CFR §§ 11.402, 11.404. The third offense—assault and
battery—is an assimilated Ute Mountain Ute tribal offense
“approved” by federal officials. § 11.449. Ultimately, fed-
eral authorities dismissed the first two charges and Mr.
Denezpi pleaded no contest to the third while maintaining
his innocence. Pursuant to federal regulation, the court
was empowered to sentence Mr. Denezpi to no more than
six months in prison for his crime, the maximum punish-
ment the assimilated tribal law permits. Ibid. Ultimately,
the court sentenced him to 140 days—a punishment just
shy of the maximum.
After further consideration, it seems federal authorities
may have regretted their hasty prosecution. It seems too
they may have considered the punishment authorized by
tribal law and their own regulations insufficient. Six
months after Mr. Denezpi finished his Interior Department
sentence, the Justice Department brought new charges
against him for the same offense under federal statutory
law. These new charges carried the potential for a much
longer sentence, one unconnected to tribal judgments about
the appropriate punishments for tribal members. See
18 U. S. C. §§ 2241(a), 1153(a). In time, a federal district
court convicted Mr. Denezpi and sentenced him to an addi-
tional 30 years in prison, followed by 10 years of supervised
release.
Throughout, Mr. Denezpi has argued that the Constitu-
tion’s Double Jeopardy Clause barred his second prosecu-
tion. The Clause provides that no person shall be “twice put
in jeopardy” “for the same offense.” Amdt. 5. No one dis-
putes that Mr. Denezpi’s first crime of conviction (assault
and battery) is a lesser included offense of his second crime
of conviction (aggravated sexual abuse). And no one dis-
putes that, under our precedents, that is normally enough
to render them the “same offense” and forbid a second pros-
ecution. Blockburger v. United States, 284 U. S. 299, 304
(1932). Yet both the District Court and Court of Appeals
Cite as: 596 U. S. ____ (2022) 5
GORSUCH, J., dissenting
rejected Mr. Denezpi’s argument, so he brought it here.
II
By anyone’s account, the Court of Indian Offenses is a cu-
rious regime. When instructing agency officials to create
the Court of Indian Offenses, neither Secretary Teller nor
anyone else pointed to any Act of Congress authorizing the
project. On the contrary, from the beginning, federal offi-
cials recognized that these “ ‘so-called courts’ ” rested on a
“shaky legal foundation.” W. Hagan, Indian Police and
Judges: Experiments in Acculturation and Control 110
(1966). Even more than that, one might wonder how an ex-
ecutive agency can claim the exclusive power to define,
prosecute, and judge crimes—three distinct functions the
Constitution normally reserves for three separate
branches. See, e.g., United States v. Brown, 381 U. S. 437,
442–443 (1965). In these proceedings, however, Mr.
Denezpi has not questioned whether the Court of Indian Of-
fenses is statutorily authorized. Nor has he questioned
whether the Constitution permits executive officials rather
than a judge and jury to try him for crimes. Accordingly,
those questions—long lingering and incredibly still unan-
swered—remain for another day.
Focusing on Mr. Denezpi’s double jeopardy claim, the
Court finds no constitutional violation thanks to the “dual-
sovereignty doctrine.” Under that doctrine, even successive
prosecutions under identical criminal laws may be permis-
sible if they are “brought by different sovereigns.” Puerto
Rico v. Sánchez Valle, 579 U. S. 59, 66–67 (2016). To my
mind, that doctrine has no place in our constitutional order.
See Gamble, 587 U. S., at ___ (GORSUCH, J., dissenting)
(slip op., at 1). But even taking the doctrine on its own
terms, it does not tolerate what transpired here.
This Court has long recognized that, unless carefully cab-
ined, the dual-sovereignty doctrine can present serious dan-
gers. Taken to its extreme, it might allow prosecutors to
6 DENEZPI v. UNITED STATES
GORSUCH, J., dissenting
coordinate and treat an initial trial in one jurisdiction as a
dress rehearsal for a second trial in another. All of which
would amount, in substance if not form, to successive trials
for the same offense. See Bartkus v. Illinois, 359 U. S. 121,
123–124 (1959). For reasons like these, this Court has said
repeatedly that the doctrine applies only when two require-
ments are satisfied. First, the two prosecutions must be
brought under “the laws of two sovereigns.” Sánchez Valle,
579 U. S., at 67. Second, the “two prosecuting entities” must
“derive their power to punish from wholly independent [sov-
ereign] sources.” Id., at 68 (emphasis added). Here, neither
condition is satisfied.
A
Start with the fact that both of Mr. Denezpi’s convictions
were for federal offenses. Almost in passing and with little
analysis, the Court suggests that his first conviction was for
a tribal offense and only his second involved a federal of-
fense. Ante, at 6. But that is wrong. Mr. Denezpi’s first
prosecution in the Court of Indian Offenses was for the vio-
lation of federal regulations that assimilated tribal law into
federal law.
The regulations could not be plainer. Subpart D of the
regulations governing the Court of Indian Offenses is titled
“Criminal Offenses.” 25 CFR §§ 11.400–11.454. This sub-
part contains a list of federal regulatory crimes, many of
which contain enumerated elements. Nested in this list is
“§ 11.449: Violation of an approved tribal ordinance.” That
regulation declares that anyone who violates a tribal ordi-
nance “approved by the Assistant Secretary [of] Indian Af-
fairs” is “guilty of an offense”—that is, an offense under the
Interior Department’s own “Law and Order Code,” Part 11.
The regulation further provides that anyone guilty of vio-
lating it “shall be sentenced as provided in the [tribal] ordi-
nance.” § 11.449.
That is exactly what happened in Mr. Denezpi’s first
Cite as: 596 U. S. ____ (2022) 7
GORSUCH, J., dissenting
prosecution. The Ute Mountain Ute have a tribal offense of
assault and battery. By all indications, it was “approved”
by the Assistant Secretary for assimilation into federal reg-
ulations. And for this federal regulatory crime, Mr. Denezpi
was sentenced to a term of incarceration in a federal deten-
tion center. On any reasonable account, Mr. Denezpi was
not convicted of a tribal offense. He was convicted of violat-
ing § 11.449, which assimilates federally approved tribal or-
dinances into federal law.
The regulation governing the Court of Indian Offenses’
criminal jurisdiction confirms the conclusion. It states that,
except as otherwise provided, the court has jurisdiction over
“any action by an Indian . . . that is made a criminal offense
under this part” by federal officials. § 11.114 (emphasis
added). The italicized language clearly refers to the list of
“Criminal Offenses” in Subpart D. And predictably enough,
“the Ute Mountain Ute Code’s assault and battery ordi-
nance” is not on that list. Ante, at 6. What is on the list is
a federal regulatory crime—“Violation of an approved tribal
ordinance”—an offense that (to repeat) assimilates certain
federally “approved” tribal laws. § 11.449.
Historical context further indicates that Mr. Denezpi was
prosecuted for a federal regulatory crime. As we have seen,
the Department of the Interior created the Court of Indian
Offenses. And the Department wrote its own criminal code
for enforcement in the court. Initially, that code included
freestanding federal crimes outlawing everything from
“heathenish dances” to “conjurers’ arts.” 1883 Rules 3–7.
Other early regulations assimilated certain state and terri-
torial laws into federal law and defined the punishment for
these crimes by reference to these local laws. See Part I–A,
supra. As we have seen, too, federal authorities have exer-
cised the power to revise their code from time to time. They
have eliminated some offenses and created others. They
have chosen to end the assimilation of state and territorial
offenses and incorporate instead certain “approved” tribal
8 DENEZPI v. UNITED STATES
GORSUCH, J., dissenting
offenses. Unless it should break some promise made to a
particular Tribe, federal authorities could close the whole
operation tomorrow just as they chose to open it in the first
place.
Both text and context indicate that Mr. Denezpi was pros-
ecuted in the Court of Indian Offenses for a federal crime,
not a tribal one. That is the best reading of the relevant
regulations. Nor would the result change if there were any
reasonable doubt, for the rule of lenity would tip the bal-
ance in Mr. Denezpi’s favor. See Harrison v. Vose, 9 How.
372, 378 (1850); Wooden v. United States, 595 U. S. ___,
___–___ (2022) (GORSUCH, J., concurring in judgment) (slip
op., at 9–12).
B
Faced with so much competing evidence, how does the
Court reply? It insists that United States v. Wheeler, 435
U. S. 313 (1978), “controls” our disposition of this case,
mandating the conclusion that Mr. Denezpi’s first prosecu-
tion was for a tribal offense, not a federal one. Ante, at 6.
That is mistaken. Wheeler held that, under the dual-
sovereignty doctrine, the Double Jeopardy Clause did not
bar federal prosecutors from pursuing a defendant after his
conviction for an equivalent tribal offense in tribal court.
435 U. S., at 329–330. In doing so, the Court stressed that,
“[b]efore the coming of the Europeans, the tribes were self-
governing sovereign political communities.” Id., at 322–
323. And the Court observed that “the power to punish of-
fenses against tribal law committed by Tribe members” was
part of inherent tribal “sovereignty, [which] has never been
taken away from [Tribes], either explicitly or implicitly, and
is attributable in no way to any delegation to them of fed-
eral authority.” Id., at 328.
Exactly none of that “controls” the disposition of this case.
Wheeler involved a prosecution by tribal authorities exer-
cising their retained sovereign authority to punish tribal
Cite as: 596 U. S. ____ (2022) 9
GORSUCH, J., dissenting
members before their own courts. It did not involve a pros-
ecution by federal authorities before a federal tribunal. The
Tribe’s prosecution in Wheeler was clearly for a tribal of-
fense too—contributing to the delinquency of a minor in vi-
olation of Title 17, § 321 of the Navajo Tribal Code. See
435 U. S., at 315–316. It did not involve a federal regula-
tion that assimilates approved tribal ordinances. What is
more, the Court in Wheeler expressly noted and specifically
reserved the question presented here. It stated that it
“need not decide” whether its holding applied to the Court
of Indian Offenses. Id., at 327, n. 26. And it reserved that
question in part because it acknowledged that, unlike tribal
courts, the Court of Indian Offenses may be an “arm of the
Federal Government.” Ibid. Wheeler settles nothing.
Aware of the weakness of its appeal to precedent, the
Court ultimately retreats to another argument. It contends
that Mr. Denezpi has “agree[d]” his first conviction was for
a “tribal” rather than a “federal” offense. See ante, at 6–7.
But if the Court intends to rely on a purported concession
to reach its judgment in this case, lower courts and future
litigants should see today’s decision for what it is: a one-off,
case-specific ruling. Whether the Court of Indian Offenses
enforces federal regulatory offenses rather than tribal of-
fenses remains an open question for other litigants to pre-
serve and pursue—and its answer is clear.
III
A
Proceeding further only underscores Mr. Denezpi’s enti-
tlement to relief. As this Court expressly acknowledged in
Gamble, the application of the dual-sovereignty doctrine
does not turn solely on “the formal difference between two
distinct criminal codes.” 587 U. S., at ___ (slip op., at 5). It
also turns on “the substantive differences between the in-
terests that two sovereigns can have in punishing the same
act.” Id., at ___–___ (slip op., at 5–6). So, for example, this
10 DENEZPI v. UNITED STATES
GORSUCH, J., dissenting
Court will find a Double Jeopardy Clause violation even if
an individual is tried under two separate legal codes if the
two prosecuting entities derive their ultimate authority
from the same sovereign source. See Sánchez Valle,
579 U. S., at 67–68. Likewise, if one sovereign uses an-
other’s laws as a “cover” or “sham” for what in substance
amounts to its own successive prosecution, it will violate
the Clause. Bartkus, 359 U. S., at 123–124. Really, this
aspect of our jurisprudence represents nothing more than a
recognition that “what cannot be done directly cannot be
done indirectly. The Constitution deals with substance, not
shadows.” Cummings v. Missouri, 4 Wall. 277, 325 (1867).
To honor the Double Jeopardy Clause in substance as
well as form, our cases indicate that we must ask, among
other things, whether “the ‘entities that seek successively
to prosecute a defendant . . . [are] separate sovereigns,’ ”
based on “the deepest wellsprings . . . of [their] prosecuto-
rial authority.” Sánchez Valle, 579 U. S., at 67–68.
“Whether two prosecuting entities are dual sovereigns in
the double jeopardy context, we have stated, depends on
whether they draw their authority to punish the offender
from distinct sources of power. The inquiry is thus histori-
cal.” Id., at 68 (citation and internal quotation marks omit-
ted). Under this inquiry, “[i]f two entities derive their
power to punish from wholly independent sources . . . then
they may bring successive prosecutions. Conversely, if
those entities draw their power from the same ultimate
source . . . then they may not.” Ibid. (internal quotation
marks omitted). So, for example, this Court has held that
successive prosecutions for the same offense in a Puerto
Rico court and a federal court are barred by the Double
Jeopardy Clause because both ultimately derive their au-
thority from Congress. Id., at 73–77.
Applying these principles here, it is clear that the deepest
historical wellsprings of the Court of Indian Offenses’ au-
thority lie not in the Ute Mountain Ute or any other Tribe,
Cite as: 596 U. S. ____ (2022) 11
GORSUCH, J., dissenting
but in the halls of the Department of the Interior. As we
have seen, federal administrative authorities created this
tribunal. Even today, federal officials continue to define
and approve offenses for enforcement before it. They
amend their list of offenses from time to time. They control
the hiring and firing of prosecutors and magistrates. They
opened this court; they may close it. The Court of Indian
Offenses was and remains a federal scheme. See Part I–A,
supra.It would be deeply revisionist to suggest otherwise. Yes,
the federal government has now eliminated many of its reg-
ulatory crimes aimed at expunging tribal traditions. Yes,
some Tribes today see these courts as an alternative to cre-
ating their own tribal courts. But as the government’s reg-
ulations make plain, the Court of Indian Offenses unambig-
uously remains “part of the Federal Government.” 58 Fed.
Reg. 54407. The federal government still exercises the au-
thority to define its own offenses without reference to tribal
law. And it enforces only those tribal ordinances its bureau-
crats approve. If the courts of Puerto Rico are properly clas-
sified as federal under our case law, it defies the imagina-
tion to think administrative tribunals hatched by the
Department of the Interior could be treated differently.
The facts of this case drive the point home. Federal au-
thorities brought charges against Mr. Denezpi in his first
prosecution in the name of the United States. Those who
prosecuted him were employed and controlled by the fed-
eral government. See 25 CFR § 11.204; see also Brief for
Ute Mountain Ute Tribe et al. as Amici Curiae 10. He was
sentenced by a magistrate whom the federal government
had the right to appoint and remove. See 85 Fed. Reg.
10714; 25 CFR § 11.202. And for his crime, Mr. Denezpi
was incarcerated in a federal detention center. Federal
agency officials played every meaningful role in his case:
legislator, prosecutor, judge, and jailor.
12 DENEZPI v. UNITED STATES
GORSUCH, J., dissenting
There is more too. Federal authorities apparently regret-
ted their hasty first prosecution. And far from seeking to
vindicate tribal sentencing policy, it seems they may have
found it wanting. So six months after the Interior Depart-
ment finished the first case, the Justice Department took
up the second. This time federal authorities invoked fed-
eral statutes carrying exponentially longer sentences, ones
that care less about tribal sentencing policy for tribal mem-
bers. Today, the federal government seeks license to follow
this same course in future cases too. Whether viewed his-
torically or through the lens of this contemporary case, the
wellsprings here are federal through and through.
B
Once more, the Court’s reply is unpersuasive. It admits
that, in case after case, this Court has emphasized that the
dual-sovereignty doctrine does not permit successive prose-
cutions by the same sovereign. Ante, at 9–10. Yet the Court
today tries to brush all these precedents aside, offhandedly
suggesting that each was mistaken. Ante, at 10. On its
telling, the only thing that matters is that Mr. Denezpi was
charged under two different sets of laws. Ibid. And here
again the Court proceeds on an assumption that Mr.
Denezpi was charged first under tribal law and then under
federal law.
But the dual-sovereignty doctrine has never exalted form
over substance in this way. If taken to its extreme, the
Court’s reasoning could seemingly allow a State to punish
an individual twice for identical offenses, so long as one is
proscribed by state law and the other by federal law. It
would potentially allow the federal government to do the
same. This Court has never before endorsed such a parsi-
monious and easily evaded understanding of the Double
Jeopardy Clause.
Notice, too, what the Court does not say. In rejecting Mr.
Cite as: 596 U. S. ____ (2022) 13
GORSUCH, J., dissenting
Denezpi’s arguments, it does not conclude that the Consti-
tution allows successive prosecutions by one sovereign
based on another sovereign’s laws. Instead, it holds only
that the “constitutional barrier to such cross-enforcement
. . . does not derive from the Double Jeopardy Clause.”
Ante, at 12. The Court says nothing, for example, about
whether the Due Process Clauses may have something to
say on the subject. See Amdts. 5, 14. Under their terms,
governments generally may not deprive citizens of liberty
or property unless they do so according to “those settled us-
ages and modes of proceeding” existing at common law.
Murray’s Lessee v. Hoboken Land & Improvement Co.,
18 How. 272, 277 (1856). And the Court points to no case
blessing successive prosecutions by a single sovereign using
its own and another’s laws, much less any “settled” tradi-
tion of doing so. So here again, the Court’s decision today
leaves much open for the future.
*
As early as the 1890s, observers expressed concern that
the creation of the Court of Indian Offenses could make it
“possible to try a man twice for the same offense,” first for
a federal regulatory offense, then for a federal statutory
crime. Proceedings of the Eighth Annual Meeting of the
Lake Mohonk Conference 32 (1890) (statement of T. Riggs).
As they put it, a federal officer might “tak[e] up” a Native
American who might then “spen[d] two or three days in the
agency lockup” pursuant to federal regulatory charges, and
“then for the same offense [might] be brought before [a fed-
eral district] court.” Ibid. Today, that pessimistic predic-
tion has proved true. It is hard to believe this Court would
long tolerate a similar state of affairs in any other context—
allowing federal bureaucrats to define an offense; prose-
cute, judge, and punish an individual for it; and then trans-
fer the case to the resident U. S. Attorney for a second trial
for the same offense under federal statutory law. Still, for
14 DENEZPI v. UNITED STATES
GORSUCH, J., dissenting
over a century that regime has persisted in this country for
Native Americans, and today the Court extends its seal of
approval to at least one aspect of it. Worse, the Court does
so in the name of vindicating tribal sovereign authority.
Ante, at 6. The irony will not be lost on those whose rights
are diminished by today’s decision. Respectfully, I dissent.