TRIBAL COURT CONVICTIONS AND THE FEDERAL SENTENCING GUIDELINES: RESPECT FOR TRIBAL COURTS AND TRIBAL PEOPLE IN FEDERAL COURT SENTENCING

Barbara L. Creel, University of New Mexico School of Law

Abstract

Native American Indians are subject to a labyrinth of competing and concurrent jurisdictional rules and statutes in criminal matters. Jurisdiction to prosecute crime in Indian county depends upon a number of factors including the status of the accused and the victim, the nature of the crime, and the location of the commission of the offense. As a result of the Major Crimes Act, Native Americans constitute a distinct and over represented population of federal criminal defendants. Indian criminal defendants are disparately impacted by successive prosecution and longer sentences due to dual federal and tribal sovereignty and concurrent and exclusive tribal court jurisdiction,

In his scholarship, Kevin Washburn has proposed that convictions issued by tribal courts should be counted in a criminal defendant’s criminal history for the purposes of determining an Indian's federal prison sentence in federal court. Washburn reasons that tribal courts and their ensuing sentences should be afforded at least the same “respect” as those of state courts in federal court.

This article critically examines this proposed “respect” for, and 'honoring' of tribal courts and their adjudications. As an Assistant Federal Public Defender, I had the opportunity to view our federal criminal laws from both the front and the back end of the criminal justice system (trial and post-conviction). As a Native woman, I have seen the impact of crime, justice, and federal sentencing on tribal people, families, and communities. It is from this perspective that I begin my work and scholarship related to criminal justice in Indian county. A critique of the proposed “respect” which would negatively impact only Native American defendants in the name of honoring tribal courts is warranted. This critique necessarily highlights cultural and political differences between state and tribal jurisdictions, and demonstrates a need for a broader understanding of tribal courts, and the role that they play in tribal communities. The goal of this exploration is to demonstrate that true “respect” for tribal courts and convictions (in the context of their connection to tribal peoples and communities) would ultimately not tolerate placing a tribal defendant in a powerless position in the federal sentencing hierarchy.