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SCOTUS Set to Hear Oral Arguments in Two Cases About Native American Tribal Sovereignty

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The United States Supreme Court Building in Washington D.C.

The Supreme Court of the United States will hear oral arguments Tuesday in two very different cases, each of which raise questions of Native American sovereignty.

The first case, Ysleta Del Sur Pueblo v. Texas, asks the justices to rule on the right of native tribes in Texas to run gaming operations that contravene Texas state law. The second, Denezpi v. United States, inquires whether the double jeopardy clause of the U.S. Constitution is triggered by a criminal prosecution in tribal court.

Ysleta del Sur Pueblo v. Texas

A decades-old controversy between Texas and two Indian tribes heads to SCOTUS for a final decision on the tribes’ right to game on their lands. Most recently, the U.S. Court of Appeals for the Fifth Circuit ruled in favor of Texas, holding that the tribes’ lawsuit could not proceed because Texas was immune from suit.

The issue in the case is whether the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes have sovereign immunity to regulate gaming on their lands. The tribes wish to conduct various gaming, including live bingo games and casino-style slot machines. The specific kind of gaming the tribes seek to conduct is known as “Class II” by the American Gaming association, and is prohibited by Texas state law.

The underlying legal conflict is essentially a choice of law question. Texas argues that the 1987 Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act (“Restoration Act”) (which bars any gaming that violates Texas law) applies, while the Indian tribes argue that the 1988 Indian Gaming Regulatory Act (“IGRA”) (which is more permissive) governs.

The tribes lost at both the district court and circuit court level. As Circuit Judge Don Willett (a Donald Trump appointee) explained in his opinion for the Fifth Circuit, the 1987 Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act “came with a catch.” Principally, the Indian tribes had their federal trust restored in exchange for a specific agreement that gaming activities on Pueblo land would comply with Texas state law.

Affirming the district court’s ruling, Judge Willett wrote, “the Restoration Act and IGRA erect fundamentally different regimes, and the Restoration Act—plus the Texas gaming laws and regulations it federalizes—provides the framework for determining the legality of gaming activities on the Pueblo’s lands.” Accordingly, the tribes’ lawsuit was barred on the grounds that the Eleventh Amendment granted Texas sovereign immunity from their legal challenge.

Denezpi v. United States

The justices also will be asked to decide whether a person prosecuted in the Court of Indian Offenses is sufficiently a “federal agency” such that the prosecution triggers the double jeopardy clause of the U.S. Constitution.

Merle Denezpi is a member of the Navajo tribe. Denezpi pleaded guilty in the Court of Indian Offenses (“CFR courts”)  to assault in 2017 and was released on time served. Months later, after a more thorough investigation of the allegations, Denezpi was indicted by a federal grand jury for the same incident. He was found guilty in federal court in Colorado, and sentenced to 30 years in prison.

Denezpi now argues that his subsequent prosecution in federal court violated the constitutional prohibition against double jeopardy. The U.S. Constitution does guarantee that individuals are free from double jeopardy, but only when the prosecuting authority is the same sovereign; this means, for example, that consecutive federal prosecutions for the same offense, or consecutive state prosecutions for the same offense would be prohibited. A federal prosecution followed by state prosecution for the same offense, however, is not prohibited. How the rule functions when the separate sovereigns are the U.S. government and the Court of Indian Offenses is less clear.

Writing for the U.S. Court of Appeals for the Tenth Circuit, U.S. Circuit Judge Stephanie Kulp Seymour (a Jimmy Carter appointee), framed the key inquiry in Denezpi’s appeal this way:

Put simply, the issue in this case is whether the power to prosecute Mr. Denezpi in the CFR court is derived from tribal sovereignty or from the federal government.

Ruling that the CFR court was indeed a separate sovereign from the U.S. federal court, Seymour wrote, “While CFR courts are not tribal courts, they nevertheless ‘function as tribal courts’ and provide the ‘judicial forum through which the tribe can exercise its jurisdiction until such time as the tribe adopts a formal law and order code.'”

The Department of Justice detailed the graphic details of the crime in its SCOTUS brief:

Inside the home, petitioner threatened to beat V.Y. with a four-foot post if she did not have sex with him. D. Ct. Doc. 81, at 63-64. Petitioner then pulled V.Y. by her shirt and hair, pushed her to the ground, and forced her to engage in nonconsensual sex. Id. at 65-68. Petitioner barricaded the door, hid V.Y.’s clothing, and threatened her with physical harm if she went to the police.

The Biden administration argues that Congress’ creation of CFR courts “did not divest the tribes of their self-governing power,” but rather, simply “provided the forum” for the tribes to exercise their power until a tribal court could be created. Denezpi, on the other hand, argues that Congress’ creation of CFR courts renders those tribunals sufficiently federal so as to trigger double jeopardy.

The Supreme Court has ruled on other double jeopardy cases in recent years. Most notably, in 2019 the Court handed down a 7-2 decision in Gamble v. United States, ruling that Terance Gamble was indeed subject to consecutive federal and state prosecutions for the same crime. The Gamble case, though, made for interesting bedfellows as the late Justice Ruth Bader Ginsburg and Justice Neil Gorsuch sided together against the majority. In his dissenting opinion, Gorsuch wrote, “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result.”

Whether Gorsuch will remain as stalwart a champion of individual protections in the Denezpi case remains to be seen.

[image via Drew Angerer/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos