Year: 2008
Type: article
Abstract: Due to Native American tribes' unique status as "domestic dependent nations" within the United States, the federal government holds criminal jurisdiction over most crimes committed within Indian country.As a result, Native Americans are subject to federal jurisdiction for many offenses that are almost exclusively within states' criminal jurisdiction, such as manslaughter, assault, and sex offenses.For example, in Minnesota, South Dakota, and New Mexico-three states with large Native American populations-Native Americans accounted for only six percent of sexual abuse offenders in state courts but over ninety percent of sexual abuse offenders in federal courtAs illustrated by sentences for aggravated assault in South Dakota, federal sentences are often harsher than their state counterparts.4 As a result, for many crimes committed by Native Americans within Indian country, 5 these defendants suffer disproportionately harsher sentences than if they were non-Indian 6 or had committed their crimes off the reservation.Prior to the Federal Sentencing Guidelines, federal judges could minimize this disparity by reducing federal sentences to a level in line with corresponding state punishments.However, the Federal Sentencing Guidelines severely restrained judicial discretion, impairing judges' ability to respond to this disparity.Despite the Federal Sentencing Guidelines' goal of promoting 3. NATIVE AMERICAN ADVISORY GROUP, supra note 1, at 21 n.37.Note that in Minnesota, the federal government maintains criminal jurisdiction over only one of the eleven tribes in the state-the Red Lake Reservation.The other tribes are all under Public Law 280 jurisdiction, meaning the State of Minnesota has full criminal jurisdiction.18 U.S.C. § 1162 (2000).4. See Christine DeMaso, Note, Advisory Sentencing and the Federalization of Crime: Should Federal Sentencing Judges Consider the Disparity Between State and Federal Sentences Under Booker?106 COLUM.L. REV.2095, 2108 (2006) (citing Michael A. Simons, Prosecutorial Discretion and Prosecution Guidelines: A Case Study in Controlling Federalization, 75 N.Y.U.L. REV.893, 917-18 (2000); Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L.J. 979, 998-99 (1995)).Sex offenses are another example of this disparity.In New Mexico, for example, the average sentence for a sex offense was twenty-five months, compared to eighty-six months in federal court.NATIVE AMERICAN ADVISORY GROUP, supra note 1, at 21-22.Note that "[i]f only the more severe class 1 and 2 felony offenses in New Mexico are considered, the state mean sentence is 43 months."Id. at 22.5. This is particularly true for manslaughter, assault, and sexual abuse.See NATIVE AMERICAN ADVISORY GROUP, supra note 1, at 13-34; see also Jon M. Sands, Indian Crimes and Federal Courts, 11 FED.SENT'G REP.153, 153 (1998) (noting that in 1997, close to seventy-five percent of all manslaughter and sexual abuse cases in federal court were Indian offenses).6. Crimes committed by non-Indians against non-Indians within Indian country are prosecuted in state courts according to state substantive law.See infra Part II.A.5.
Source: Marquette law review
Author: Timothy J. Droske
Language: English
Topic: Criminal Law and Policy
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W1553406186