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Reconsidering the Sentencing Commission's Treatment of Tribal Courts

6 Pages Posted: 9 Aug 2005  

Kevin K. Washburn

University of New Mexico - School of Law


The United States Sentencing Guidelines treat convictions from tribal courts with little respect in determining a defendant's criminal history for purposes of federal sentencing. Unlike state and federal sentences, tribal court convictions are not routinely counted in evaluating criminal history. Because a tribal conviction reflects the normative judgment of the defendant's own community, such a conviction ought to be considered far more legitimate as a normative matter than a federal or state conviction. Therefore, it ought to be treated with at least as much status as a state and federal conviction.

The Guidelines currently treat tribal courts like foreign courts. While this may seem, at first glance, to reflect respect for the unique sovereign status of Indian tribes, it actually seems to mask discrimination against tribal courts and it fails to appreciate the important place of tribal courts in American justice. Tribal courts have federally recognized criminal jurisdiction on American soil and they work hand-in-hand with federal and sometimes state authorities to exercise this authority. Tribes are simply more similar to state and federal courts than to foreign courts.

True, the Constitution's Bill of Rights does not apply directly to Indian tribes, as the Supreme Court has held, because tribes predate the Constitution and are not parties to the constitutional compact. Nevertheless, other federal laws require tribal courts to function in a manner nearly identical to state and federal courts and require tribal courts to incorporate most of the individual rights protections found in the Bill of Rights. Given the inherent clash between American-style individual rights and traditional tribal communal values, the federally mandated respect for individual rights no doubt comes at great cost to tribal sovereignty and prevents tribal courts from acting as they might wish in certain cases. But since tribal courts must bear the burdens of behaving like other American courts, they are entitled to the same recognition and respect for their work that these other courts receive.

The United States Sentencing Commission should take a lesson from the Executive, Legislative, and Judicial branches of the federal government and even from other independent federal regulatory agencies. Most of these actors have embraced policies favoring tribal self-determination that show great respect for tribal governments and their courts. The Commission should amend the guidelines to grant appropriate respect to tribal courts.

This article is followed in the Federal Sentencing Reporter with brief comments by a federal court of appeals judge, two federal district court judges, and a federal public defender.

Keywords: Indian, tribe, sentencing

JEL Classification: K14

Suggested Citation

Washburn, Kevin K., Reconsidering the Sentencing Commission's Treatment of Tribal Courts. Federal Sentencing Reporter, Vol. 17, p. 209, 2005; Minnesota Legal Studies Research Paper No. 05-26. Available at SSRN:

Kevin K. Washburn (Contact Author)

University of New Mexico - School of Law ( email )

1117 Stanford, N.E.
MSC11 6060 * 1 University of New Mexico
Albuquerque, NM 87131-0001
United States
505.277.3304 (Phone)

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