Native American Defendants Serve More Time For Same Crime; Treaty Rights Test Case Sidestepped For Now

The August 24 Minnesota Lawyer magazine wrote a cover story titled: “Blame it on Crow Dog: Indian defendants serve more time for the same crime than non-Indians.” The article is worth reading but it behind a paywall (and the “Blame it on Crow Dog” headline falls in line with blaming Native Americans for the laws that have been imposed on them).

The bottom line is this: for historical reasons, major crimes committed by Indians on a reservation are prosecuted in federal courts, not state courts. Federal laws impose tougher penalties than state laws for the same crimes, so Indians end up spending more time in prison. A federal panel is looking at the problem (again). Here is the quick history lesson and summary of the disparities that exist in Native American sentencing practices.

Start with the 1883 Supreme Court case Ex Parte Crow Dog. According to the Wikipedia summary:

The case concerned the murder of one Indian by another on reservation land. Crow Dog was a member of the Brulé band of the Lakota Sioux. On August 5, 1881 he shot and killed Spotted Tail, a Lakota chief; there are different accounts of the background to the killing. The tribal council dealt with the incident according to Sioux tradition, and Crow Dog paid restitution to the dead man’s family. However, the U.S. authorities then prosecuted Crow Dog for murder in a federal court. He was found guilty and sentenced to hang. [Upon appeal, the] Supreme Court held that unless authorized by Congress, federal courts had no jurisdiction to try cases where the offense had already been tried by the tribal council. Crow Dog was therefore released.

Congress responded to the Court’s decision by passing the Major Crimes Act of 1885, which preempted Native sovereignty in prosecuting crimes on the reservation. It placed specified major crimes under federal jurisdiction if they were committed by an Indian against another Indian on reservation land.

In 1953, Congress amended the law with Public Law 280, which allowed Minnesota and several other states jurisdiction over criminal and civil offenses committed by or upon Native Americans on reservations. According to the Minnesota Lawyer article, after P.L. 280 passed, only the Red Lake and Boise Forte reservations remained under federal jurisdiction. Then, in 2013, White Earth officials opted for concurrent federal jurisdiction. (There is more to the story here, and we need to do more research.)

But, again, the reason all this matters is that over the years, Congress has toughened penalties for federal crimes. So, according to the Minnesota Lawyer story, a study found that in New Mexico, Indians convicted of sexual assault in federal court received sentences three times longer than those convicted in state court. In South Dakota, Indians convicted of sexual assault received federal sentences that were almost double the state sentence for the same crime. (And prisoners held in federal prison don’t get time off for good behavior or parole eligibility.) Also, the number of Native American prisoners in federal court has increased 27 percent in the last five years, the story said.

The problem is under federal review. Earlier this April, the Wall Street Journal published an article titled: Federal Panel Reviewing Native American Sentencing. It opens with the following:

Spurred by concerns from judges, prosecutors and tribal leaders, a federal panel is reviewing whether Native Americans living on reservations face disproportionately harsher punishments for crimes than other Americans.

Ralph Erickson, chief federal district court judge for North Dakota and head of the U.S. Sentencing Commission committee conducting the review, is among those calling for an examination of the sentencing practices on the nation’s 325 reservations.

“No matter how long I have been sentencing in Indian Country, I find it gut-wrenching when I am asked by a family member of a person I have sentenced why Indians are sentenced to longer sentences than white people who commit the same crime,” Judge Erickson, who was appointed by President George W. Bush, wrote in a 2014 letter to a fellow jurist. …

Treaty Rights Court Battle Sidestepped … For Now

Dozens of White Earth and Leech Lake band tribal members went to harvest wild rice earlier this week at Hole in the Day Lake–off reservation and without a permit. Under state law, it is illegal for them to rice without a permit. This was an effort to provoke the state Department of Natural Resources (DNR) into issuing them citations. The tribal members believe an 1855 treaty gives them much broader hunting and gathering rights than currently allowed by the state–and they should be able to rice at Hole in the Day Lake and other places without a permit. If they are cited for violating the law, they could go to court and and argue the treaty is not being fairly interpreted.

Minnesota Public Radio reported that the DNR issued a special event permit allowing tribal members to collect wild rice on Hole-in-the-Day Lake.  “The special permit skirts the court battle for the time being, but band members warned they might try ricing or netting on another off reservation lake tomorrow, or in the near future,” MPR said.

Stay tuned. And in the meantime, here is a link to the treaty language, and a link to a summary by the site Treaties Matter.