![handle is hein.crs/govehwc0001 and id is 1 raw text is: Congressional_______
~ Research Service
Double Jeopardy, Dual Sovereignty, and
Enforcement of Tribal Laws
June 16, 2022
On June 13, 2022, the U.S. Supreme Court in a 6-3 decision upheld the federal prosecution of a man who
had already been convicted of, and punished for, a lesser-included offense by a Court of Indian Offenses.
Merle Denezpi argued that the U.S. Constitution's Double Jeopardy Clause should bar the second
prosecution, but the Supreme Court disagreed, holding that the second prosecution was for a separate
offense and thus not constitutionally barred.
Double Jeopardy and the Dual Sovereignty Doctrine
The Double Jeopardy Clause of the Constitution's Fifth Amendment prohibits any person from being
twice put in jeopardy of life or limb for the same offense. This prohibition on double jeopardy means
that, generally speaking, a person cannot be prosecuted twice for the same crime. However, two different
sovereign governments may prosecute the same offense without violating the Double Jeopardy Clause;
this is known as the dual sovereignty doctrine. The Supreme Court has upheld the ability of the federal
and state governments to prosecute a defendant successively for violating both federal and state laws,
even if those laws seem to criminalize the same conduct. [W]here there are two sovereigns, there are two
laws, and two 'offences,' the Court has explained.
Tribes and Dual Sovereignty
Federally recognized tribes retain inherent powers of limited sovereignty, including a general power to
enforce certain tribal laws against members of federally recognized tribes on tribal lands-a power that is,
in some instances, exclusive of state criminal jurisdiction. In 1978, the Supreme Court affirmed that tribal
and federal prosecutions are brought by separate sovereigns, and therefore are not barred by the Double
Jeopardy Clause.
Most tribal prosecutions are carried out in tribal courts operated by the tribes themselves. Where tribal
courts have not been established, however Federal Courts of Indian Offenses-also called CFR Courts
because they are governed by provisions of the Code of Federal Regulations-may exercise the
jurisdiction on behalf of those tribes. (An Indian is defined in the relevant regulations as a member of a
federally recognized tribe.) Tribes without tribal courts may pass tribal ordinances, which become
Congressional Research Service
https://crsreports. congress.gov
LSB10763
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govehwc0001&div=1&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most