In December 2007, however, the Supreme Court decided United States v. Kimbrough, in which the Court held that under Booker, district court judges were not bound to accept the 100:1 crack-powder sentencing ratio that existed in the Guidelines. The Court determined that while courts were bound by the minimum and maximum sentences proscribed by Congress, “it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack-powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes.” This holding significantly enhances district court judges’ ability to award non-Guidelines sentences in the Native American and fast-track contexts.

This Article, therefore, will address district court judges’ authority to correct for Native American sentencing disparity in light of Kimbrough, as well as what lessons can still be drawn from the debate surrounding fast-track disparity. Applying the same principles articulated by the Court in Kimbrough, it is evident that Congress has not barred sentencing courts from considering sentencing disparity as it relates to Native Americans. Moreover, the findings of the Native American Advisory Group reflect that the Guidelines fail to properly consider the impact federal sentences have on Native Americans. After establishing that district courts have the authority to consider Native American sentencing disparity when sentencing Native American defendants, this Article will then show how judges are to consider this issue in light of judges’ instruction to sentence defendants in accord with the factors set forth in § 3553(a).

Admittedly, the approach advocated in this Article will not fully eradicate Native American sentencing disparity. If a district court chooses not to alter a sentence based on such disparity, circuit courts are permitted to treat a district court’s decision to adhere to the Guidelines as presumptively reasonable, and moreover, even non-Guidelines sentences will still be bound by the statutory minimums and maximums set by Congress. Any attempt to fully eradicate the disparate sentences endured by Native American defendants, however, would require wide-sweeping reform of the Federal Sentencing Guidelines or major congressional changes to the Major Crimes Act. This proposal offers two advantages to such an alternative. First, the proposal presented in this Article presents an immediate solution to Native American defendants. Any attempt to fundamentally modify the Guidelines or amend the Major Crimes Act would require a high degree of political capital to obtain, and so far, such attempts have fallen short. Furthermore, with Native American sentencing disparity being a byproduct of a jurisdictional issue, the courts, particularly post-Booker, are perhaps the branch best suited to resolve this concern.