SCOTUS Update: The Latest On Denezpi v. United States and Oklahoma v. Castro-Huerta
As the 2021 Term comes to an end, the National Indigenous Women’s Resource Center (NIWRC) and Native women’s rights advocates are watching two cases very closely: Denezpi v. United States and Oklahoma v. Castro-Huerta. The NIWRC filed amicus briefs in both cases, highlighting the implications on issues related to safety for Native women and children that are inherent in both. The Court heard oral arguments in Denezpi on February 22, 2022, and oral arguments in Castro-Huerta were heard on April 4, 2022, and we expect the written decisions will be released by the end of June.
Denezpi v. United States
In Denezpi, the petitioner, Denezpi, asked the Supreme Court to address whether a Court of Indian Offenses (“CFR court”) constitutes a federal agency such that the U.S. Constitution’s Double Jeopardy Clause would preclude his subsequent prosecution in a United States District Court for the same conduct underlying his conviction in the CFR court. In its amicus brief, the NIWRC argued in support of the United States’ position that under the “separate sovereigns doctrine,” Denezpi’s dual prosecutions did not violate the U.S. Constitution’s Double Jeopardy Clause. The Supreme Court took up a similar legal question regarding the separate sovereigns doctrine in Gamble v. United States in 2019, a case in which the NIWRC also filed an amicus brief. In that case, the Supreme Court found the separate sovereigns doctrine is constitutional and remains in force (that case concerned dual prosecutions in federal and state courts, and the NIWRC’s amicus brief educated the Supreme Court on the potential implications of a decision eroding the separate sovereigns doctrine).
Although the question before the Court is whether a CFR court exercises federal versus Tribal authority, no Tribal Nation was permitted to speak or argue during the oral argument.
The February 22 argument in Denezpi was very concerning. Because Denezpi was challenging his subsequent conviction in federal court, the United States was a party to this case and not the Tribal Nation whose sovereignty was in question. That is, although the question before the Court is whether a CFR court exercises federal versus tribal authority, no Tribal Nation was permitted to speak or argue during the oral argument. The Ute Mountain Ute Tribe—whose sovereignty was being challenged—submitted an amicus brief in support of the argument that CFR courts are tribal courts, but the United States was the only party permitted to speak in favor of tribal sovereignty in the United States Supreme Court.
Merle Denezpi, a Navajo citizen, was arrested on July 20, 2017, by Ute Mountain Ute Tribal authorities and charged with violating Ute Mountain Ute assault and battery laws, as well as two provisions regarding terroristic threats and false imprisonment of the Code of Federal Regulations, for his July 17, 2017, sexual assault of a Navajo woman. The assault was committed while the two were at Denezpi’s girlfriend’s house on the Ute Mountain Ute Indian reservation near Towac, Colorado. Mr. Denezpi entered a plea to the assault charge under tribal and federal law in CFR court and on December 6, 2017, he was released from tribal custody for time served. Six months after Denezpi was released from tribal custody, he was indicted by a federal grand jury on one count of aggravated sexual abuse in Indian Country under federal law.
As the NIWRC noted in the opening of its brief, even though violence against Native women traces its roots to the origins of colonialism, the continued acceptance of violence against Native women in the culture at large is made possible by a legal framework that prevents Tribal Nations from prosecuting most violent crimes committed against Native women and children, necessitating a dual sovereign framework where both CFR courts (acting under inherent tribal authority) and federal courts can prosecute for crimes committed against Native women and children on tribal lands. The amicus brief argued four main points: (1) the current rates of violence against Native women and children constitute a crisis; (2) CFR courts play a critical role in addressing sexual assault and domestic violence crimes committed against Native women and children; (3) jurisdictional and sentencing limitations imposed on Tribal Nations (and therefore CFR courts) renders tribal-federal collaboration critical for the safety of Native women and children; and (4) excluding CFR courts from the separate sovereigns exception would undermine safety and justice for Native women and children.
Overall, the argument focused heavily on the bureaucratic red tape involved in the Bureau of Indian Affairs’ administration of CFR courts while entirely overlooking the underlying issues of tribal sovereignty and safety for Native women. It was clear during the course of the argument that the attorney arguing for the United States did not understand the connection between sovereignty and safety for Native women. Although Justices repeatedly asked questions regarding what possible interest a Tribal Nation could have in a prosecution such as this one in a CFR court, the attorney representing the United States Department of Justice (“DOJ”) said nothing as to the connection between tribal sovereignty and safety for Native women and children. Even though the NIWRC’s amicus brief clearly spelled out why the epidemic of violence against Native women and children necessitates the finding that CFR courts exercise tribal authority and function as tribal instrumentalities, the DOJ attorney did not make or suggest such a connection during oral arguments.
“The Ute Mountain Ute Tribe—whose sovereignty was being challenged—submitted an amicus brief in support of the argument that CFR courts are tribal courts, but the United States was the only party permitted to speak in favor of tribal sovereignty in the United States Supreme Court."
Although it is impossible to predict the outcome at this point, the argument did not go well for Tribes and Native women advocates. In its amicus brief, the NIWRC warned that if the Court were to conclude that prosecutions in CFR courts preclude subsequent prosecutions in federal court for the same offense, Tribes will face two frustrating choices each time one of their women or children is sexually assaulted on tribal lands: (1) waiting to see if federal charges will be filed against a defendant to allow for a meaningful sentence which matches the severity of the crime, while risk the loss of the ability to file tribal charges in CFR court in the event of a federal declination because the tribal statute of limitations will have tolled by the time the tribal prosecutor knows whether the United States will file federal charges; or (2) bringing tribal charges in CFR court to ensure some sort of justice, and thereby precluding the possibility of a subsequent federal prosecution and a meaningful sentence that could deter future violent crimes committed by the same, or additional, offenders.
No Tribal Nation should have to face this choice. All Tribal Nations should have the right to exercise their own inherent authority to prosecute crimes committed against their women and children, regardless of whether they utilize a CFR court or their own tribal court. The failure of all involved in the oral argument to recognize Tribal Nation’s sovereign interest in protecting their women and children from sexual assault is incredibly disturbing.
To be sure, the Supreme Court’s complete indifference to impacts on Native women and children is jarring and illustrates the larger issue: namely, that there has never been a Native Justice on the Supreme Court, and—outside of Justices Sotomayor and Gorsuch—the Justices do not hire Native law clerks. Furthermore, Tribes and their attorneys are often shut out from making arguments to the Court in crucial Indian law cases where, instead of Tribes, the DOJ argues these cases. All too often, however, the DOJ’s attorneys arguing on behalf of tribal sovereignty cannot answer the most basic questions about it.
“It was very disturbing to sit through the entire argument and never hear a single question or comment made about the Native sexual assault victim or how the Supreme Court’s decision might lessen or enhance her protection,” states Sarah Deer, (Muscogee (Creek) Nation), co-counsel to the NIWRC. “We have a lot of work to do to address the erasure of Native women at the highest echelons of the United States government.”
As the NIWRC noted in the opening of its brief, even though violence against Native women traces its roots to the origins of colonialism, the continued acceptance of violence against Native women in the culture at large is made possible by a legal framework that prevents Tribal Nations from prosecuting most violent crimes committed against Native women and children.
Oklahoma v. Castro-Huerta
Following the Muscogee (Creek) Nation’s historic victory in McGirt v. United States, the State of Oklahoma has filed more than thirty petitions for certiorari asking the Supreme Court to reverse itself and judicially disestablish a reservation that Congress itself has refused to eliminate. So far, the Supreme Court has declined to take Oklahoma’s invitation to reverse itself. In the case of Oklahoma v. Castro-Huerta, Oklahoma’s cert petition asked the Court to both (1) reverse McGirt and (2) grant Oklahoma criminal jurisdiction over non-Indian perpetrated crimes against Native victims on tribal lands. The Court granted cert. on the second question but denied Oklahoma’s request to take up the first. Technically, the question presented is whether the General Crimes Act, 18 U.S.C. § 1152 (“GCA”) provides for exclusive federal jurisdiction or concurrent state and federal criminal jurisdiction over non-Indians who commit crimes against Indians in Indian country. Respondent Castro-Huerta is a non-Indian who was convicted in Oklahoma state court of severely neglecting his stepdaughter, an enrolled member of the Eastern Band of Cherokee Indians.
The oral argument focused on the proper role of text and statutory history in interpreting the GCA; what analysis the Court should apply in determining whether the GCA had preempted state jurisdiction; and the significance of the practical law enforcement issues which have developed in Oklahoma since the Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). Oklahoma maintained its false “the sky is falling narrative” and continued to assert that McGirt has created a public safety crisis whereby thousands of criminals now roam free. Of course, this false narrative has been thoroughly debunked by the excellent investigative journalistic work of Allison Herrera and Cherokee journalist Rebecca Nagle whose article in The Atlantic, “Where is Oklahoma Getting its Numbers From in its Supreme Court Case” demonstrates that Oklahoma has no data or actual evidence to substantiate its claims that McGirt has led to a public safety crisis. One of the highlights of the April 4oral argument was when Justice Sotomayor questioned Oklahoma’s attorney about the research in the article and asked him to explain how Oklahoma had come up with its numbers. He was unable to respond.
The NIWRC’s amicus brief made critical points to support the Tribes’ and Castro-Huerta’s position that the Court should not grant Oklahoma the jurisdiction it requests. First, the NIWRC agreed with Respondent that Congress, and only Congress, has the requisite constitutional authority to grant a State criminal jurisdiction on Indian country lands. The Supreme Court simply does not have the necessary authority to fulfill Oklahoma’s request.
Second, the NIWRC noted that Congress is well-aware of the crisis of non-Indian violence against Indian victims on tribal lands, and Congress is actively engaged in addressing it. Specifically, Congress just reauthorized the Violence Against Women Act (“VAWA”), and in doing so, restored several critical categories of non-Indian crimes, including child abuse—a category that could include tribal prosecutions of severe criminal neglect of a child if so defined by the implementing Tribe. Thus, as the NIWRC argued in its amicus brief, there is simply no need for the Court to give States this jurisdiction when Congress is focused on restoring the jurisdiction to the sovereign with the most significant interest in protecting tribal citizens: the Tribal Nations themselves.
The NIWRC amicus brief also included facts and evidence documenting the failures of laws such as the Kansas Act and PL-280, whereby Congress has elected to grant States’ criminal jurisdiction over crimes committed throughout Indian country. In those examples, the NIWRC argued, Native women and children have been less safe since the States have failed to allocate sufficient resources to law enforcement on tribal lands and ultimately have failed to adequately prosecute crimes committed against Native people.
Once again, the absence of a Native woman’s voice during oral argument remains highly problematic and only serves to perpetuate misinformation regarding what will increase or decrease safety for Native victims of crime.
The NIWRC amicus brief was joined by several organizations and Tribal Nations, including the Confederated Tribes of the Chehalis Reservation, the Confederated Tribes of the Umatilla Indian Reservation, the Prairie Band Potawatomi Nation, the Seminole Nation, and the Yurok Tribe. The NIWRC was also joined by 37 additional tribal coalitions, nonprofit organizations, and Tribal Nations that share the NIWRC’s commitment to end domestic violence, rape, sexual assault, and other forms of violence against Native women and children in the United States.
“It was very disturbing to sit through the entire argument and never hear a single question or comment made about the Native sexual assault victim or how the Supreme Court’s decision might lessen or enhance her protection.” — Sarah Deer, Muscogee (Creek) Nation, co-counsel to the NIWRC.
During oral arguments, several Justices (for instance, Justice Kavanaugh, but also Justices Alito and Sotomayor) suggested that granting Oklahoma this requested jurisdiction would help Native victims and would be in their best interest. Unfortunately, both the attorney arguing for Castro-Huerta and the attorney arguing for the United States failed to inform the Court that Native victims (or as we prefer to be known, survivors) had filed an amicus brief in this particular case making clear why granting Oklahoma its requested jurisdiction would not serve the interests of Native victims. Once again, the absence of a Native woman’s voice during oral argument remains highly problematic and only serves to perpetuate misinformation regarding what will increase or decrease safety for Native victims of crime.
The Supreme Court should issue a decision in Castro-Huerta by the end of June.