Source: (2011) California Law Review. 99:1409-1437.
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. (author’s abstract)