In addition to its stunning internal flaws, the United States Supreme Court’s opinion in Oklahoma v. Castro-Huerta exemplifies Indian law’s broader flaws as a jurisprudence. Castro-Huerta holds that states have concurrent criminal jurisdiction with federal and tribal governments over crimes by non-Indians against Indians on reservation lands. Justice Gorsuch deftly addresses many of the glaring internal flaws in Kavanaugh’s majority opinion, but not all. He does not dissect the hollow assertion that reservations are part of the surrounding state both geographically and politically. This cannot go unaddressed, particularly given its weak analysis, misguided use of precedent, and broader consequences.
Castro-Huerta’s holding affects the precise kind of “jurisdictional overlap” at the root of the slow erosion of tribal sovereignty over time, as first explained in a prior article. The Founders believed two governments generally cannot co-exist, i.e. overlap. They had a firm idea of what happens when jurisdictional overlap occurs: one government slowly subsumes the other over time until nothing meaningful is left, here labeled “competitive sovereign erosion.” The Founding Fathers believed this proposition so much and feared it so deeply that it played a central role in how the Constitution was written, specifically the categorical division of authority between the federal and state governments. Tribal sovereignty will continue to be vulnerable to competitive sovereign erosion until a solution is reached that results in either a respect for tribal borders, or a qualitative division of governmental authority between tribal governments, the federal government, and the states. Anything less will continue the long-term war of sovereign attrition historically experienced by tribes.
Analyzing Indian law as a competitive sovereign erosion problem of the sort contemplated by the Framers and discussing it in terms of United States federalism has additional jurisprudential and advocacy advantages. Doing so disconnects Indian law from the tortured logic exemplified by Castro used to reach anti-Indian results, and reconnects it to the intuitively fair, commonly accepted, and historically effective answers used when White cultures have had the same kinds of problems. From an advocacy perspective, competitive erosion adopts a conceptual framework and lexicon that resonates with conservatives commonly opposed to tribal sovereignty. Using competitive erosion can present tribal sovereignty in a way that persuadable conservatives can embrace.
Tribes wanting to maintain their separate existence need to overturn the assertion that reservations are part of the state, oppose practices that give the appearance of being part of state government, and push congress for legislation that will eliminate jurisdictional overlap between tribes, states, and the federal government.
This Comment proposes that because the AWA threatens the tribal sovereignty of both non-Public Law 280 and Public Law 280 tribes, Congress should amend the AWA to require tribe and state cooperative agreements to carry out AWA sex offender registration and notification functions.
Timothy Droske, a Seventh Circuit clerk, has published “Correcting Native American Sentencing Disparity Post-Booker” in the Marquette Law Review. An excerpt:
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.
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