89 N.D. L. Rev. 53
Addressing Sentencing Disparities for Tribal Citizens in the Dakotas: A Tribal Sovereignty Approach
– BJ Jones & Christopher J. Ironroad
Native Americans in the Dakotas can receive criminal sentences in federal courts that are harsher than sentences meted out for similar conduct in state courts. The reason for this is the historical role the federal government has played in determining justice issues in tribal communities. Although the federal government oftentimes sought tribal input into justice issues in tribal communities, that input has not been sought in the area of sentencing of natives for offenses in federal courts, with some limited exceptions (death penalty and career offender sentencing). This Article argues a need to change this practice and that Indian tribes, through an opt-in provision similar to other tribal opt-in provisions in the criminal justice arena, should have a right to dictate more equitable sentencing for their members when the sentencing disparity is stark and exists only because federal jurisdiction lies. Such a remedy to disparate sentencing would not impact the prosecution of crime in tribal communities, but instead would ensure that native persons do not receive more punitive sentences merely because of their status as American Indians. Because of the unique trust relationship between the United States and American Indian tribes, the United States has a legal and moral imperative to address this issue, similar in regards to the disparity in federal sentences for crack versus powder cocaine offenses, which had a disproportionate impact upon African-Americans. In particular, this Article examines the sentencing of a young native woman on the Fort Berthold reservation who was prosecuted for the death of an infant child and sentenced in accordance with federal guidelines that appear to be far out of proportion to similar sentences in state courts. This Article suggests that a remedy for prior sentences be considered by Congress in light of the hesitancy of the executive branch to utilize its clemency powers to correct Native American sentencing injustices.