Sentencing Commission Retains Tribal Issues Advisory Group

The US Sentencing Commission seeks applications by October 24, 2016, for a standing advisory group that consults with Indian Country regarding federal sentencing issues. It will also study the findings and recommendations contained in the May 2016 Report, and consider amendments to the Guidelines Manual.

Download: Notice (PDF), Charter (PDF)

Previous posts: Final Report

Eighth and Ninth Circuits Affirm Indian Country D.V. Sentences

Here is Wednesday’s opinion in United States v. White Twin (CA8):


And here is Wednesday’s opinion in United States v. Two Moons (CA9):


Barbara Creel on Tribal Court Convictions and Federal Sentencing

Barbara Creel (who will be one of our distinguished speakers this weekend) has posted her paper, “Tribal Court Convictions and the Federal Sentencing Guidelines: Respect for Tribal Courts and Tribal People in Federal Sentencing,” on SSRN. It is forthcoming in the USF Law Review.

Here is the abstract:

This article critiques a proposal to include tribal court criminal convictions and sentences in the federal sentencing scheme. The proposal, as articulated by Kevin Washburn, calls for an amendment to the Federal Sentencing Guidelines to count tribal court convictions in calculating an Indian defendant’s criminal history score to determine a federal prison sentence. Currently, tribal court convictions are not directly counted in criminal history, but may be used to support an “upward departure” to increase the Native defendant’s overall federal sentence.

Washburn’s proposal seeks to gain “respect” for tribal courts, based upon a premise that tribal convictions must be afforded the same weight and treatment as federal and state criminal convictions under the Federal Sentencing Guidelines. This Article explores the idea of respect for tribal courts and convictions in the context of their history and connection to tribal peoples and communities. Ultimately, this Article concludes that respectful treatment would not tolerate placing a tribal defendant in such a powerless position within the federal sentencing hierarchy.

A proposal that would negatively impact only Native American defendants in a foreign justice system in the name of respect warrants critical review. As an Assistant Federal Public Defender, I had the opportunity to view the application of federal criminal laws from the front and the back end of the criminal justice system, from trial to post-conviction. As a Native woman, I have seen the impact of crime, justice, and federal sentencing on tribal people, families, and whole communities.

It is from this perspective that I focus the lens of respect on the work of tribal courts and criminal justice in Indian Country, and ultimately oppose any amendment in federal sentencing to count tribal court convictions to increase federal sentences for Native criminal defendants. A review of the historical diminishment of tribal authority over crime and punishment on the reservation, as well as the disparate impact of crime and punishment on Native peoples, leads to a rejection of counting tribal court convictions in federal sentencing. This Article proposes an alternative view that both respects Native American individuals caught in the criminal justice system and elevates tribal sovereignty.

New Scholarship on Tribal Control of Federal Sentencing in California Law Review

Emily Tredeau has published “Tribal Control in Federal Sentencing” in the California Law Review.

Here is the abstract:

On many Indian reservations throughout the country, the federal government is the only sovereign empowered to prosecute serious felonies. Consequently Native Americans are disproportionately exposed to lengthy federal sentences. Because the federal government controls these cases, tribal sovereigns lack the local control over criminal law and policy that states enjoy.

Under the federal sentencing guidelines, each federal crime has an offense level that can go up or down depending on the crime’s circumstances. Combined with a defendant’s criminal history, the final level determines the range of sentences recommended under the guidelines. I propose that tribes alone decide offense levels for crimes committed in Indian country. This proposal aims to (1) enhance tribal sovereignty over on-reservation violence and thereby provide tribes with experience regulating felonies; (2) increase respect among tribal governments and their members for federal criminal prosecutions; and (3) decrease the racial sentencing disparity between Indians and non-Indians.

U.S. v. St. Cyr — Sentencing American Indians in Federal Offenses

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

An excerpt:

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.

Nevada v. United States — Habeas Claim re: Tribal Court Convictions

A federal prisoner’s challenge to an upward departure from the sentencing guidelines based on past tribal court convictions was rejected.