Federal Government & Native Americans

FEDERAL GOVERNMENT IN INDIAN JURISDICTION

Native Americans face increased prison time and fines than similarly situated Norwegians. The Federal Sentencing Guidelines treatment of Native Americans is harsh, discriminatory, and unfair. The United States Commission has attempted to respond to the concerns of the sentencing guidelines creating a disparate impact on Native American defendants by forming the Native American Advisory Group. This group has been put in charge to consider any viable methods to improve the operation of the guidelines in their application to Native Americans under the Major Crimes Act. It was found that the combination of jurisdictional sentencing disparities and that most of the violent crime caseload in Federal court involves Native Americans creates an unfair inequity that weighs heavily on criminal defendants in Native American jurisdictions.

The Federal Government recognizes 562 tribal governments. Although the Native American population accounts for only one point five percent (1.5) of the nation's population as a whole, a majority of violent crime cases in Federal court arise from Native American jurisdiction. There are three (3) federal statutes that govern whether federal, state, or tribal courts have jurisdiction over crimes committed in Native American jurisdictions. Those statutes are the General Crimes Act (18 U.S.C. § 1152), the Major Crimes Act (18 U.S.C. § 1153), and Public Law 280 (18 U.S.C. § 1162). Jurisdiction over crimes by Native American in Native American jurisdictions originally lied exclusively with the tribes until the enaction of the aforementioned statutes.

The General Crimes Act provides that the general laws of the United States that apply in areas of exclusive Federal jurisdiction extend to Native American jurisdictions. Thus, Native American reservations are treated as Federal entities when it comes to the application of the law. The Act expressly exempts Native Americans who commit an offense against another Native American while in Native American jurisdictions. These offenses are left to tribal courts to process. The Major Crimes Act originally authorized federal jurisdiction over seven offenses committed by a Native American within Native American jurisdiction. These offenses include murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny. The Federal government has expanded this Act to also encompass fourteen (14) classes of felonies, but have left misdemeanor offenses to tribal jurisdiction. Public Law 280 (PL 280) was developed to hold Native American offenders subject to the same criminal jurisdiction as non Native American offenders, thus making no distinction whether the offense was committed in Native American jurisdiction or not, unless falling in one of PL 280's exempted areas. This held one-fourth of all Native Americans under state jurisdiction for state crimes. However, Native American offenders in PL 280 areas would not subject to the Federal sentencing guidelines, except to the extent that all United States citizens are subject to them for violations of criminal laws at the Federal level.

Federal courts have jurisdiction over all violations of federal law, whether within or outside of Native American jurisdiction, no matter the racial status of the parties. "In non-PL 280 states, the Federal government has jurisdiction over the fourteen Major Crimes Act crimes committed against Indians by Indians." The crimes that do not fall under the Major Crimes Act, and which occur between a Native American and non-Native American with the crime occurring in Native American jurisdiction, fall under Federal court jurisdiction through the General Crimes Act, with the exception of non-major crimes in which the tribal court has tried and punished the offender.

For capital punishment crimes, the federal death penalty contains an "opt-in" provision for Native American tribes. Since 1994, only one Native American tribe, Sackandfox of Oklahoma, has "opted-in."

The issues [causing reluctance] to the tribes can be summarized as: capital punishment is considered contrary to most Indian tribal cultures and religions; opting in means turning over to the U.S. Attorney and to the Department of Justice (virtually all non-Indian) the power to determine whether an Indian could face the death penalty; Indians are represented on federal court juries in low numbers; racial issues strongly impact the death decision. Although the death penalty statute requires the jury to certify that it did not take race into account in imposing the death penalty, in Indian country cases the defendants' and the victims' status is an element of proof to obtain federal jurisdiction. As such, the jury must expressly consider race in reaching its decision. Opting in would result