Here is an interesing sentencing memorandum out of the District of Nebraska. Apparently, the court refused to adopt an argument by the United States to sentence American Indians for longer terms than they would otherwise be sentenced under state law, at least in this case. Seems to recall footnote 11 in United States v. Antelope. Luke St Cyr Sentencing Memorandum
In connection with the need to avoid unwarranted sentencing disparities, the court notes that these crimes, if committed by a non-Native American outside a reservation, are prosecuted in state court. The court acknowledges the Sentencing Commission’s finding that the Sentencing Guidelines result in longer sentences for Native Americans than they would otherwise receive. There is no way to compare sentences for non-Native Americans who commit these crimes without reference to state court sentences. The court finds no principled reason to subject this defendant to a substantially longer sentence than his state court non-Native American counterpart would serve. Although state court sentences would not ordinarily be considered in connection with federal court sentencing, such consideration is necessary when it is the only basis on which to assess the sentencing goal of avoiding disparity. Although there are arguably situations in which the disparate impact on a group of defendants could be justified by legitimate sentencing goals that target the shared characteristics that define the group, such as recidivists, it is hard to imagine that any legitimate sentencing purpose would justify the imposition of significantly higher sentences on Native Americans by reason of their status as Native Americans.