Man convicted of sex crime on Colo. tribal reservation appeals to SCOTUS – coloradopolitics.com

A man prosecuted for assault in theUte Mountain Ute's judicial system is turning to the U.S. Supreme Court, arguing his subsequent conviction in federal court violated his constitutional right against double jeopardy.

Merle Denezpi is asking the justices to determine whether the "CFR Court" for the Ute Mountain Reservation named for the Code of Federal Regulations provision that established it is an arm of the federal government rather than a sovereign entity. The answer could illuminate whether he deserved to have his second case dismissed entirely.

"CFR courts differ from tribal courts and whether federal or tribal sovereignty is the source of their prosecutorial powers is an important question this Court has not yet answered," Santa Fe attorney Theresa M. Duncan wrote to the Supreme Court in Denezpi's petition.

According to court records, Denezpi, of Shiprock, N.M., traveled into the reservation in July 2017 to his girlfriend's house near the town ofTowaoc. Denzpi, a Navajo tribal member, traveled there with his victim, also Navajo, and at the house he threatened and sexually assaulted her.

The victim was able to escape in the early morning and after being picked up by police, she reported the assault to tribal authorities and underwent a forensic examination that documented numerous injuries to her body and genitals.

Tribal police arrested Denezpi afterward, and he faced an assault charge in theCourt of Indian Offenses of the Ute Mountain Ute Agency. He ultimately served a sentence of less than five months in custody.

However, a federal grand jury subsequently indicted Denezpi for aggravated sexual abuse in Indian Country. The crime is subject to both federal and tribal jurisdiction when the victim and perpetrator are Indian. A jury found him guilty and Denezpi received a sentence of 30 years in prison.

Denezpi appealed, arguingthe Fifth Amendment prohibited his re-prosecution for the same offense.

A federal district court judge decided it did not, given that tribes derive their prosecutorialpower separately from any delegation by the federal government. The U.S. Court of Appeals for the 10th Circuit upheld Denezpi's conviction last year, also rejecting his claim that the tribal court gained its jurisdiction from the federal government, rather than its status as a sovereignentity.

Congress established CFR courts to give tribes jurisdiction over American Indians where tribal courts have not been established. Tribes have both created and stepped back fromtheir tribal courts over the years.

In writing for the three-member appeals panel, Senior Judge Stephanie Kulp Seymour referenced the Supreme Court's 1978 finding that Indian nations' power to punish tribal members who violate tribal law has never been taken away, and always stemmed from their sovereignty.

"Congresss creation of CFR courts, then, did not divest the tribes of their self-governing power," she wrote in the panel's opinion.

The case raises the issue of "dual sovereignty," a doctrine that allows for two sovereign entities to both prosecute a crime that is against their laws, regardless of double jeopardy protections. Denezpi claimed that CFR courts are hybrids, operating as tribal courts in areas where there are none, but are also arms of the federal government.

"Because the CFR courts function, at least in part, as a 'federal agency,' the the Double Jeopardy clause prohibits a second prosecution by another federal agency, in this case the Department of Justice," his petition argued.

The government waived its right to respond to Denezpi's petition, but the Supreme Court subsequently requested that the U.S. Departmentof Justice weigh in.

The case is Denezpi v. United States.

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Man convicted of sex crime on Colo. tribal reservation appeals to SCOTUS - coloradopolitics.com