A case that emerged from a 500,000-acre Indian reservation in America’s sprawling West will reshape the contours of one of common law’s ancient taboos. The Romans called it non bis in idem, or “not twice against the same.” 

We call it “double jeopardy,” or in the phrasing of the Constitution, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”  

The protections offered by that constitutional safeguard will grow frailer after a Supreme Court decision on Monday, in Denezpi v. United States. The Nine held that “the Double Jeopardy Clause does not bar successive prosecutions of distinct offenses arising from a single act, even if a single sovereign prosecutes them.” 

The high court opinion, authored by Justice Amy Coney Barrett and joined by Justices Clarence Thomas, Stephen Breyer, Samuel Alito, and Chief Justice Roberts, means that the same act can generate a cascade of charges. 

The circumstances that gave rise to Denezpi touch on core issues of due process and sovereignty, in particular the legal status of Indian lands within America’s constitutional architecture.  

The defendant, Merle Denezpi, a member of Navajo Nation, was charged with assault and battery on the Ute Mountain Ute Reservation, under the Court of Indian Offenses, whose jurisdiction extends to tribal lands. Denzpi pleaded guilty and was sentenced to time served.

This particular genus of court differs from Indian tribunals because its authority derives from the Code of Federal Regulations, and ultimately from the Department of the Interior, rather than independent tribal sovereignty. 

Courts of Indian Offences hold sway in places where tribes have not empowered their own courts. There are five of these courts active, covering 16 of the more than 500 tribes that enjoy federal recognition.

A Stanford law professor who focuses on tribal and constitutional issues, Gregory Ablavsky, who wrote an amicus brief in this case, tells the Sun that these courts are “hangovers from an imperial legacy.” Mr. Ablavsky departs from the court in believing that they function as tribal organs, not federal ones.        

Denezpi pleaded guilty in a Court of Indian Offenses to assault and battery and was handed a suspended sentence. Six months later, he was indicted by a federal grand jury for aggravated sexual abuse in Indian country under the Major Crimes Acr, which was passed in 1885 and extended federal oversight to certain crimes committed on Indian territory. 

Denezpi appealed the second indictment, which arose from the same incident, on the basis of double jeopardy. His pleas fell on deaf district court and appellate ears, and have now been rejected by the high court as well.   

Double jeopardy does not protect when charges are brought by two “sovereigns,” like the state and federal governments. Justice Coney Barret explains that this is because “an offense defined by one sovereign is necessarily different from an offense defined by another, even when the offenses have identical elements.”

In a case decided in 1978, Wheeler v. United States, the court held that tribal and federal courts exercise separate sovereignty. Justice Potter Stewart wrote that “the sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress, and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers.” 

In a case from 2020, McGirt v. Oklahoma, Justice Gorsuch wrote for the majority in holding that land treaties drawn up in the 19th century still hold in the 21st, ensuring that large swaths of Oklahoma remain tribal land for the purpose of federal criminal law. 

Justice Gorsuch explained that “if Congress wishes to withdraw its promises, it must say so.” Until it does so, states cannot renege on tribal sovereignty. “On the far end of the Trail of Tears,” Justice Gorsuch writes, “was a promise.”

This case, the majority opinion explains, offers a “twist,” because the tribal court in question had its roots in federal, not tribal, authority. Thus, despite the role played by tribal law, the majority sees in Denezpi’s travails “successive prosecutions by the same sovereign.”

While this logic would appear to strengthen the case for double jeopardy — a single sovereign prosecuting multiple times is precisely the variety of injustice the Founders warned against — that is not how the constitutional cookie crumbled here. 

The court refrained from deciding the question of sovereignty, and instead was guided by what Professor Ablavsky called a “narrowly textualist approach,” focusing instead on a limited reading of double jeopardy.  

The court held that the Constitution’s use of “offence” means that separate charges stemming from the same action do not run afoul of double jeopardy.  The crucial matter is not the act, but the legal consequences of that act. 

As the majority writes, “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.” 

Justice Gorsuch, writing in dissent, pithily summarizes how he sees the case — “same defendant, same crime, same prosecuting authority” — in arguing that double jeopardy should have been applied. The justice goes further in asserting that the dual sovereignty doctrine “is at odds with the text and original meaning of the Constitution.”

This is not the first time Justice Gorsuch has demurred from the doctrine of dual sovereignty and the multiplicative charging that it enables. In a 2019 dissent in Gamble v. United States, he wrote that “a free society does not allow its government to try the same individual for the same crime until it’s happy with the result.”

In decrying what he called the court’s “colossal exception to this ancient rule against double jeopardy,” Justice Gorsuch was joined by Justice Ruth Bader Ginsburg, who quoted 82 Federalist to the effect that “the United States and its constituent States, unlike foreign nations, are “kindred systems,” “parts of ONE WHOLE.”