A Supreme Court case on the Fifth Amendment’s double jeopardy clause missed an opportunity to reaffirm the sovereignty of tribal courts.
that the Fifth Amendment’s double jeopardy clause does not prevent both tribal and federal governments from prosecuting an individual for the same crime. These two governments, the court held, are separate sovereigns, and each has an interest in defining and punishing illegal acts within its jurisdiction. The case split 6–3, with the majority and the dissent disagreeing over not just law but history.
In a 6–3 decision, the Supreme Court rejected Denezpi’s argument and ruled that a tribal member’s actions led to separate prosecutions under tribal ordinance and federal statute. Justice Amy Coney Barrett wrote the majority opinion,of whether the CFR court derived its power from sovereignty or the federal government. Instead, the justice argued that Denezpi had been prosecuted for distinct offenses.
However, Gorsuch’s dissent tells an oversimplified story of federal Indian law and of CFR courts. A quick look at the history of these courts helps explain both the confused reasoning in the majority opinion and the unusual alliance in the dissent. The NYU-Yale American Indian Sovereignty Project, through its Native Amicus Briefing Project, provided this history inNative peoples have governed themselves under their own laws since time immemorial.
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