Denezpi v. United States

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 2
Pages 591–618
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 13, 2022
REBECCA A. WOMELDORF
reporter of decisions
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591
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 offcer with the federal Bureau of Indian Affairs fled a criminal com-
plaint against Merle Denezpi, a member of the Navajo Nation, charging
Denezpi with three crimes alleged to have occurred at a house located
within the Ute Mountain Ute Reservation: assault and battery, in viola-
tion of 6 Ute Mountain Ute Code § 2; terroristic threats, in violation of
25 CFR § 11.402; and false imprisonment, in violation of 25 CFR § 11.404.
The complaint was fled in a CFR court, a court which administers jus-
tice 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 prosecution. The District
Court denied Denezpi's motion. Denezpi was convicted and sentenced
to 360 months' imprisonment. The Tenth Circuit affrmed.
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. 597–605.
(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
of a law is an inherent and distinctive feature of the law itself, an offense
defned by one sovereign is necessarily a different offense from that of
another sovereign. See id., at –––. The two offenses can therefore be
separately prosecuted without offending the Double Jeopardy Clause—
even if they have identical elements and could not be separately prose-
cuted if enacted by a single sovereign. See id., at –––, n. 1, –––. This
dual-sovereignty principle applies where “two entities derive their

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592 DENEZPI
v. UNITED STATES
Syllabus
power to punish from wholly independent sources.” Puerto Rico v.
Sánch
ez 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 pro-
scription of aggravated sexual abuse in Indian country. The Ute Moun-
tain 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—defned by separate sovereigns—pro-
scribe separate offenses, so Denezpi's second prosecution did not place
him in jeopardy again “for the same offence.” Pp. 597–599.
(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 prohibit
successive prosecutions by the same sovereign; rather, it prohibits suc-
cessive 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 prosecuting 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 encompass 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 sov-
ereign successively prosecuting its own law and that of a different sover-
eign. In any event, imprecise statements cannot overcome the holdings
of the Court's cases, not to mention the text of the Clause. Those au-
thorities make clear that enactment is what counts in determining
whether the dual-sovereignty doctrine applies. Denezpi's reliance on
Bartkus v. Illinois, 359 U. S. 121, is misplaced. At most, Bartkus ac-
knowledged 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 frst points
to the Government's exclusion of Major Crimes Act felonies from the

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Syllabus
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 prosecu-
tion.” Brief for Petitioner 29. Not so. Federal regulatory crimes are
defned by the Federal Government, so successive prosecutions for a
federal regulatory crime and a federal statutory crime present a differ-
ent 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 doc-
trine,” 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 ordi-
nance—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 sover-
eigns to assume more broadly the authority to enforce other sovereigns'
criminal laws in order to get two bites at the apple. If a constitutional
barrier to such cross-enforcement exists, it does not derive from the
Double Jeopardy Clause. Pp. 599–605.
979 F. 3d 777, affrmed.
Barrett, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Breyer, Alito, and Kavanaugh, JJ., joined. Gor-
such, J., fled a dissenting opinion, in which Sotomayor and Kagan, JJ.,
joined as to Parts I and III, post, p. 605.
Michael B. Kimberly argued the cause for petitioner.
With him on the briefs were Paul W. Hughes and Theresa
M. Duncan.
Erica L. Ross argued the cause for the United States.
With her on the brief were Solicitor General Prelogar, As-
sistant Attorney General Polite, Deputy Solicitor General
Feigin, and David M. Lieberman.*
*Keith J. Hilzendeger and Barbara Bergman fled a brief for the Na-
tional Association of Criminal Defense Lawyers as amicus curiae urging
reversal.
Briefs of amici curiae urging affrmance were fled for the State of
Colorado et al. by Philip J. Weiser, Attorney General of Colorado, Eric R.
Olson, Solicitor General, Daniel Steuer, Senior Assistant Attorney Gen-
eral, and Daniel Magalotti and Olivia Probetts, Assistant Attorneys Gen-
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594 DENEZPI
v. UNITED STATES
Opinion of the Court
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 defned
by one sovereign is necessarily different from an offense de-
fned by another, even when the offenses have identical ele-
ments. 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 having
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 of-
fenses be both enacted and enforced by separate sovereigns.
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
petitioner's frst 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 Offce of Indian Affairs (now known as the
eral, and by the Attorneys General for their respective States as follows:
Douglas J. Peterson of Nebraska, Aaron D. Ford of Nevada, and Sean
Reyes of Utah; for Federal Indian Law Scholars et al. by Ian Heath Gersh-
engorn, Keith M. Harper, Zachary C. Schauf, and Amanda L. White-
Eagle; for the National Indigenous Women's Resource Center et al. by
Mary Kathryn Nagle and Jennifer Baker; for the Ute Mountain Ute Tribe
et al. by Jennifer H. Weddle and Troy A. Eid; and for Former United
States Attorneys John C. Anderson et al. by R. Trent Shores, pro se, and
Amelia A. Fogleman.
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Opinion of the Court
Bureau of Indian Affairs) to suggest that the Offce “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 sys-
tems, 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 adminis-
tration of justice for Indian tribes” in certain parts of Indian
country “where tribal courts have not been established.”
§ 11.102. The Department's Assistant Secretary for Indian
Affairs appoints CFR court judges, called magistrates, sub-
ject to a confrmation 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 accord or upon
the recommendation of the tribal governing body. § 11.202.
1
Unless a contract with a tribe provides otherwise, a Depart-
ment offcial 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 or-
dinances that, when approved by the Assistant Secretary,
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 confrmation
and removal of magistrates. 25 CFR §§ 11.201(a), 11.202.
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596 DENEZPI
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Opinion of the Court
are enforceable in CFR court and supersede any conficting
federa
l regulations. §§ 11.108, 11.449.
B
The reservation of the Ute Mountain Ute Tribe spans over
500,000 acres in southwestern Colorado, northern New Mex-
ico, and southeastern Utah. The Tribe has more than 2,000
members. It has not created its own court system, so it
makes use of the Southwest Region CFR Court. The Tribe
has, however, adopted its own penal code, which is enforce-
able 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 offcer with the federal Bureau of Indian Affairs fled
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
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 sexual
abuse in Indian country, an offense covered by the federal
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 con-

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597
Opinion of the Court
victed Denezpi, the District Court sentenced him to 360
months'
imprisonment.
The Tenth Circuit affrmed. 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 pro-
vides: “No person shall . . . be subject for the same offence
to be twice put in jeopardy of life or limb.” The Clause by
its terms does not prohibit twice placing a person in jeopardy
“ `for the same conduct or actions.' ” Gamble v. United
States, 587 U. S. –––, ––– (2019). 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 Violation
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 requires
it”). An offense, then, is “defned by a law.” Gamble, 587
U. S., at –––; see Moore v. Illinois, 14 How. 13, 19–20 (1852).
And a law is defned by the sovereign that makes it, express-
ing the interests that the sovereign wishes to vindicate.
Gamble, 587 U. S., at –––; 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 sovereignty, not that of the other”). Because the
sovereign source of a law is an inherent and distinctive fea-
ture of the law itself, an offense defned by one sovereign is
necessarily a different offense from that of another sover-
eign. See Gamble, 587 U. S., at –––; Moore, 14 How., at 20.
That means that the two offenses can be separately prose-
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598 DENEZPI
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Opinion of the Court
cuted without offending the Double Jeopardy Clause—even
i
f they have identical elements and could not be separately
prosecuted if enacted by a single sovereign. See Gamble,
587 U. S., at –––, n. 1, –––; cf. Blockburger v. United States,
284 U. S. 299, 304 (1932) (offenses defned by a single sover-
eign 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 sover-
eigns from the United States). It applies, however, to
Indian tribes too.
United States v. Wheeler, 435 U. S. 313 (1978), is the semi-
nal 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 doc-
tr i ne, the Cour t re jec ted W heeler 's double jeopardy
argument. We explained that before Europeans arrived on
this continent, tribes “were self-governing sovereign politi-
cal communities” 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 regu-
lated 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-
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Opinion of the Court
sault and battery ordinance and the United States Code's
proscr
iption of aggravated sexual abuse in Indian country.
The Ute Mountain Ute Tribe, like the Navajo Tribe in
Wheeler, exercised its “unique” sovereign authority in adopt-
ing the tribal ordinance. Id., at 323. Likewise, Congress
exercised the United States' sovereign power in enacting the
federal criminal statute. See Lanza, 260 U. S., at 382. The
two laws, defned by separate sovereigns, therefore pro-
scribe separate offenses. Because Denezpi's second prose-
cution did not place him in jeopardy again “for the same
offence, ” that prosecuti on did not v i olate the Double
Jeopardy Clause.
B
Denezpi agrees with much of this—that sovereigns defne
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
Brief 3–4.
2
But he argues that the dual-sovereignty doc-
trine is concerned not only with who defnes the offense, but
also with who prosecutes it. In Wheeler, the defendant was
initially prosecuted in a tribal court; Denezpi, by contrast,
2
The dissent, unwilling to accept Denezpi's framing of the case, asserts
that his frst conviction was for a federal offense because CFR court regu-
lations assimilated the Tribe's assault and battery ordinance. Post, at
610–614 (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 ad-
dressed 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 611, they are much less clear
than the Assimilative 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 subject 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 Sec-
retary 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 ques-
tion is complex, making it particularly imprudent to raise and resolve it
sua sponte as the dissent proposes to do.

600 DENEZPI
v. UNITED STATES
Opinion of the Court
was initially prosecuted in a CFR court. While tribal prose-
cutors
in tribal courts indisputably exercise tribal authority,
Denezpi claims that prosecutors in CFR courts exercise fed-
eral authority because they are subject to the control of the
Bureau of Indian Affairs. He concludes that he was there-
fore prosecuted twice by the United States. And that, he
insists, violated the Double Jeopardy Clause because “the
dual-sovereignty doctrine does not apply when successive
prosecutions are undertaken by a single sovereign, regard-
less of the source of the power to adopt the criminal codes
enforced in each prosecution.” Brief for Petitioner 16–17.
3
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 defned by one
sovereign is different from an offense defned by another.
Thus, even if Denezpi is right that the Federal Government
prosecuted his tribal offense, the Clause did not bar the Fed-
eral 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
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 prosecutor's
power, matters in the dual-sovereignty analysis. See post, at 615–616.
Again the dissent strays from Denezpi's argument, which has focused on
the source of the prosecutor's authority. See, e. g., Tr. of Oral Arg. 9–11.
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rule is often dubbed an `exception' to the double jeopardy
r
ight, it is not an exception at all. On the contrary, it follows
from the text that defnes that right in the frst place.” 587
U. S., at –––. 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 597. We have seen no evi-
dence that “offence” was originally understood to encompass
both the v i olati on of the law and the identity of the
prosecutor.
Treating the identity of the prosecutor as part of the def-
nition of “offence” is as odd as it sounds. An offense has
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 performed at a given
time, and failure to register at that time was a completed
criminal offense”). The law has long recognized, then, that
an offense is committed before it is prosecuted. For exam-
ple, 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 im-
partial 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 in-
dicted of the larciny, for they are several offenses, tho com-
mitted at the same time.” 2 History of the Pleas of the
Crown 245–246 (1736). In addition, Chief Justice Marshall,
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speaking for the Court, described a section of the Crimes
A
ct of 1790 as providing that “if manslaughter be committed
in [certain places], the offender may be prosecuted in the
federal Courts.” United States v. Wiltberger, 5 Wheat. 76,
98 (1820). So Denezpi's proposal would put us in the posi-
tion of holding that a person's single act constitutes two sep-
arate offenses at the time of commission (because the act
violates two different sovereigns' laws) but that those of-
fenses later become the same offense if a single sovereign
prosecutes both. He offers no textual justifcation for this
nonsensical result.
2
With the text against him, the best Denezpi can do is stitch
together loose language from our precedent. For example,
we have said that “two offenses `are not the “same offence” '
for double jeopardy purposes if `prosecuted by different sov-
ereigns.' ” Gamble, 587 U. S., at ––– (emphasis deleted); see
Wheeler, 435 U. S., at 329–330 (“Since tribal and federal
prosecutions are brought by separate sovereigns, they are
not `for the same offence' ”). In another case, we stated that
“[i]f an entity's authority to enact and enforce criminal law
ultimately comes from Congress, then it cannot follow a fed-
eral prosecution with its own.” Sánchez Valle, 579 U. S., at
77; see id., at 62 (“[T]he issue is only whether the prosecuto-
rial powers of the two jurisdictions have independent ori-
gins”). And we have remarked that “the crucial determina-
tion [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 sover-
eigns.” Heath, 474 U. S., at 88.
Read in isolation, these statements help Denezpi's position
that the identity of the prosecuting sovereign matters under
the dual-sovereignty doctrine. Read in context, their help-
fulness dissipates. None of these cases involves or even
mentions the unusual situation of a single sovereign succes-
sively prosecuting its own law and that of a different sover-
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Opinion of the Court
eign. This language appears in the context of the usual situ-
ati
on: a sovereign (or alleged sovereign) prosecuting its own
laws.
4
Because enactment and enforcement almost always
go hand in hand, it is easy to overlook that they are occasion-
ally 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 difference be-
tween enactment and enforcement, it is understandable why
we did not. In any event, imprecise statements cannot over-
come 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 ap-
plied. 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 prosecu-
tion . . . a sham and a cover for a federal prosecution.” Id.,
at 122–124. That resolution meant that the Court had no
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).
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Opinion of the Court
occasion to consider whether the Double Jeopardy Clause
wou
ld 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-sovereig nty doctrine will not
apply if “a second prosecution by an apparently separate sov-
ereign is `in essential fact' just a `cover' for a second prosecu-
tion by the frst 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 Dou-
ble 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 seri-
ous 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. Fed-
eral regulatory crimes are defned by the Federal Govern-
ment, so successive prosecutions for a federal regulatory
crime and a federal statutory crime present a different dou-
ble jeopardy question from the one presented here.
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Next, Denezpi argues that permitting successive prosecu-
ti
ons 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
ordinance—duly enacted by its governing body as an expres-
sion of the Tribe's condemnation of that crime—is enforced,
regardless of who enforces it.
Finally, Denezpi asser ts that the conclusion we reach
might lead to “highly troubling ” results. Brief for Peti-
tioner 30–32. He suggests that sovereigns might more
broadly assume 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 explained, the Clause does not bar successive prosecu-
tions of distinct offenses, even if a single sovereign prose-
cutes them.
***
Denezpi's single act led to separate prosecutions for viola-
tions 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 affrm the judgment of the Court of
Appeals.
It is so ordered.
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
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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). 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
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 contemporar-
ies worried that too many Tribes were under “the infuence
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 defne 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]
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citizens' dress, and engage[d] in civilized pursuits.” Report
of
the Commissioner of Indian Affairs 28 (1892) (1892 Re-
port). The Department likewise appointed offcers charged
with investigating the crimes it created. Federal Offce of
Child Support Enforcement, IM–07–03, Tribal and State Ju-
risdiction To Establish and Enforce Child Support 10 (2007).
And the regulatory criminal code the Department produced
outlawed everything from “old heathenish dances” and “med-
icine men” and their “conjurers' arts” to certain Indian
mourning practices. Rules Governing the Court of Indian
Offenses 3–7 (1883) (1883 Rules). The Department's new
criminal code also assimilated “the laws of the State or Terri-
tory within which the reservation may be located,” and
instructed that sentences for assimilated offenses should
match those imposed by state or territorial law. 1892 Re-
port 30. Unsurprisingly, tribal members often regarded
these courts as “foreign” and “hated” institutions. V. Delo-
ria & C. Lytle, American Indians, American Justice 115–116
(1983).
Over time, as the federal government's attitude toward
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 offcials. 25 CFR §§ 11.400–11.454 (2021). And the
regulations continue to assimilate other crimes too. Instead
of assimilating state and territorial crimes, federal regula-
tions today assimilate tribal crimes. They do so, however,
only if and to the extent those tribal crimes are “approved
by the Assistant Secretary [of] Indian Affairs or his or her
designee.” § 11.449. As before, any federal punishment 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 De-
partment unless a Tribe opts out of that arrangement.
§ 11.204. Likewise, the Department retains full authority to
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“appoint a magistrate without the need for confrmation by
the
Tribal governing body.” 85 Fed. Reg. 10714 (2020).
And the Department retains the power to remove these ad-
judicators. 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 Moun-
tain 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
offcials charged Mr. Denezpi with three offenses: terroristic
threats, false imprisonment, and assault and battery. Fed-
eral regulations defne the frst two offenses. See 25 CFR
§§ 11.402, 11.404. The third offense—assault and battery—
is an assimilated Ute Mountain Ute tribal offense “ap-
proved” by federal offcials. § 11.449. Ultimately, federal
authorities dismissed the frst two charges and Mr. Denezpi
pleaded no contest to the third while maintaining his inno-
cence. Pursuant to federal regulation, the court was em-
powered to sentence Mr. Denezpi to no more than six months
in prison for his crime, the maximum punishment the assimi-
lated tribal law permits. Ibid. Ultimately, the court sen-
tenced 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 insuffcient. Six
months after Mr. Denezpi fnished his Interior Department
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sentence, the Justice Department brought new charges
agai
nst 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 ap-
propriate punishments for tribal members. See 18 U. S. C.
§§ 2241(a), 1153(a). In time, a federal district court con-
victed Mr. Denezpi and sentenced him to an additional 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 prosecution.
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 frst crime of conviction (assault and
battery) is a lesser included offense of his second crime of
conviction (aggravated sexual abuse). And no one disputes
that, under our precedents, that is normally enough to ren-
der them the “same offense” and forbid a second prosecution.
Blockburger v. United States, 284 U. S. 299, 304 (1932). Yet
both the District Court and Court of Appeals rejected
Mr. Denezpi's argument, so he brought it here.
II
By anyone's account, the Court of Indian Offenses is a curi-
ous regime. When instructing agency offcials to create the
Court of Indian Offenses, neither Secretary Teller nor any-
one else pointed to any Act of Congress authorizing the proj-
ect. On the contrary, from the beginning, federal offcials
recognized that these “ `so-called courts' ” rested on a “shaky
legal foundation.” W. Hagan, Indian Police and Judges: Ex-
periments in Acculturation and Control 110 (1966). Even
more than that, one might wonder how an executive agency
can claim the exclusive power to defne, 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 pro-
ceedings, however, Mr. Denezpi has not questioned whether
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the Court of Indian Offenses is statutorily authorized. Nor
has
he questioned whether the Constitution permits execu-
tive offcials rather than a judge and jury to try him for
crimes. Accordingly, those questions—long lingering and
incredibly still unanswered—remain for another day.
Focusing on Mr. Denezpi's double jeopardy claim, the
Court fnds no constitutional violation thanks to the “dual-
sovereignty doctrine.” Under that doctrine, even succes-
sive prosecutions under identical criminal laws may be per-
missible 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., dissent-
ing). 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
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 satisfed. 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
[sovereign] sources.” Id., at 68 (emphasis added). Here,
neither condition is satisfed.
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 frst conviction was for
a tribal offense and only his second involved a federal of-
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fense. Ante, at 598–599. But that is wrong. Mr. Denezpi's
frst
prosecution in the Court of Indian Offenses was for the
violation 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 violat-
ing it “shall be sentenced as provided in the [tribal] ordi-
nance.” § 11.449.
That is exactly what happened in Mr. Denezpi's frst prose-
cution. 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 regu-
lations. 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 ordi-
nances into federal law.
The regulation governing the Court of Indian Offenses'
criminal jurisdiction confrms 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 offcials. § 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 598–599. What is on
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the list is a federal regulatory crime—“Violation of an ap-
proved
tribal ordinance”—an offense that (to repeat) assimi-
lates 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 “hea-
thenish dances” to “con jurers' ar ts. ” 1883 Ru les 3 –7.
Other early regulations assimilated certain state and territo-
rial laws into federal law and defned the punishment for
these crimes by reference to these local laws. See Part I–
A, supra. As we have seen, too, federal authorities have
exercised 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 terri-
torial offenses and incorporate instead certain “approved”
tribal 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 frst place.
Both text and context indicate that Mr. Denezpi was prose-
cuted 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 balance
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).
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, man-
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dating the conclusion that Mr. Denezpi's frst prosecution was
for
a tribal offense, not a federal one. Ante, at 598.
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 federal
authority.” Id., at 328.
Exactly none of that “controls” the disposition of this case.
Wheeler involved a prosecution by tribal authorities exercis-
ing their retained sovereign authority to punish tribal mem-
bers before their own courts. It did not involve a prosecu-
tion 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 vio-
lation of Title 17, § 321 of the Navajo Tribal Code. See
435 U. S., at 315–316. It did not involve a federal regulation
that assimilates approved tribal ordinances. What is more,
the Court in Wheeler expressly noted and specifcally re-
served the question presented here. It stated that it “need
not decide” whether its holding applied to the Court of In-
dian Offenses. Id., at 327, n. 26. And it reserved that ques-
tion 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 frst conviction was for
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a “tribal” rather than a “federal” offense. See ante, at 599.
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-specifc 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 entitle-
ment 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 –––. It also turns on
“the substantive differences between the interests that two
sovereigns can have in punishing the same act.” Id., at ––– –
–––. So, for example, this Court will fnd a Double Jeop-
ardy 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 sov-
ereign uses another'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 sub-
stance, 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 pros-
ecute a defendant . . . [are] separate sovereigns,' ” based on
“the deepest wellsprings . . . of [their] prosecutorial author-
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ity.” Sánchez Valle, 579 U. S., at 67–68. “Whether two
prosecuti
ng entities are dual sovereigns in the double jeop-
ardy context, we have stated, depends on whether they draw
their authority to punish the offender from distinct sources
of power. The inquiry is thus historical.” Id., at 68 (cita-
tion and internal quotation marks omitted). Under this in-
quiry, “[i]f two entities derive their power to punish from
wholly independent sources . . . then they may bring succes-
sive 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 de-
rive their authority 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,
but in the halls of the Department of the Interior. As we
have seen, federal administrative authorities created this tri-
bunal. Even today, federal offcials continue to defne and
approve offenses for enforcement before it. They amend
their list of offenses from time to time. They control the
hiring and fring 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 regu-
latory 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 unambigu-
ously remains “part of the Federal Government.” 58 Fed.
Reg. 54407. The federal government still exercises the au-
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616 DENEZPI
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law. And it enforces only those tribal ordinances its bureau-
crats
approve. If the courts of Puerto Rico are properly
classifed as federal under our case law, it defes the imagina-
tion to think administrative tribunals hatched by the Depart-
ment 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 frst
prosecution in the name of the United States. Those who
prosecuted him were employed and controlled by the federal
government. See 25 CFR § 11.204; see also Brief for Ute
Mountain Ute Tribe et al. as Amici Curiae 10. He was sen-
tenced 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 incar-
cerated in a federal detention center. Federal agency off-
cials played every meaningful role in his case: legislator,
prosecutor, judge, and jailor.
There is more too. Federal authorities apparently regret-
ted their hasty frst 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 fnished the frst case, the Justice Department took up
the second. This time federal authorities invoked federal
statutes carrying exponentially longer sentences, ones that
care less about tribal sentencing policy for tribal members.
Today, the federal government seeks license to follow this
same course in future cases too. Whether viewed histori-
cally or through the lens of this contemporary case, the well-
springs 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 601–603. Yet the
Court today tries to brush all these precedents aside, off-
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handedly suggesting that each was mistaken. Ante, at 602.
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. De-
nezpi was charged frst under tribal law and then under fed-
eral 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. Denezpi's arguments, it does not conclude that the Con-
stitution 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 605. 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, govern-
ments generally may not deprive citizens of liberty or prop-
erty unless they do so according to “those settled usages 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 succes-
sive prosecutions by a single sovereign using its own and
another's laws, much less any “settled” tradition 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
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“possible to try a man twice for the same offense,” frst for a
federa
l regulatory offense, then for a federal statutory crime.
Proceedings of the Eighth Annual Meeting of the Lake Mo-
honk Conference 32 (1890) (statement of T. Riggs). As they
put it, a federal offcer 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 federal dis-
trict] court.” Ibid. Today, that pessimistic prediction has
proved true. It is hard to believe this Court would long
tolerate a similar state of affairs in any other context—allow-
ing federal bureaucrats to defne an offense; prosecute,
judge, and punish an individual for it; and then transfer the
case to the resident U. S. Attorney for a second trial for the
same offense under federal statutory law. Still, for 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
598–599. The irony will not be lost on those whose rights
are diminished by today's decision. Respectfully, I dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None