Document Type

Article

Publication Date

1-1-2004

Abstract

In light of the overwhelming acceptance of the norm of tribal self-governance in federal Indian policy, the Commission's decision not to credit the legitimate work of tribal courts in adjudicating misdemeanor sentences is surprising. This article critically evaluates this peculiar and unexplained policy. Part I describes the current federal policy toward tribal governments with particular emphasis on tribal courts and explains the role of tribal courts in the unique federal criminal justice regime that governs Indian country. Part II describes the Federal Sentencing Guidelines with particular attention to the provisions on criminal history. Part II also evaluates the Commission's current position that tribal courts ought to be treated like foreign courts rather than state courts for purposes of criminal history calculations. Part III evaluates the Commission's treatment of tribal courts in light of the broader context of federal Indian policy and the actions of federal judges, state courts, and legislatures. Part III also explains some of the inconsistency of the current stance toward tribal courts with regard to federal sentencing policy and explains the consequences of this policy for tribal courts and Indian communities. Part IV suggests reforms to the Commission's policy on tribal courts that would position the Commission more in line with the mainstream of federal Indian policy and ensure that tribal court adjudications and sentences are accorded whatever respect they are due.

Publication Title

Arizona State Law Journal

Volume

36

First Page

403

Last Page

450

Included in

Law Commons

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