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I. Introduction.243
II. A Short History of Tribal and Federal Government Relations.244
A. Contact, Co-Existence, and Colonization (1492-1789).245
B. Constitution, Marshall Trilogy, and the Genesis of "Plenary Power" (1789-1832).245
C. Removal to Self-Determination (1828-Present).247
D. History as Context for Present and Future.248
III. A Short History of the United States Sentencing Guidelines.249
IV. Tribal Court Convictions Under U.S.S.G. and the Tribal Issues Study Groups.251
V. Competing Views of Tribal Court Convictions in Federal Sentencing: Sovereignty as Parity and Sovereignty as Difference.260
A. Sovereignty as Parity.260
1. Foundations of Sovereignty as Parity.261
2. Problems with Sovereignty as Parity.263
B. Sovereignty as Difference.266
1. Foundations of Sovereignty as Difference.267
2. Problems with Sovereignty as Difference.268
C. Viewing TIAG's Proposals Through the Lenses of Sovereignty as Parity and Sovereignty as Difference.269
VI. Sovereignty as Engagement.275
VII. Conclusion.281
I. Introduction
Criminal justice in the United States is a balancing act between local and national enforcement, policies, and priorities. The common refrain "don't make a federal case out of it" is perhaps nowhere as palpable a consideration as in criminal prosecutions. Elevating a case into the courts of the United States is a serious consideration for the Department of Justice.1 In addition to front-end decisions about investigation and prosecution of offenses, the federal and local criminal justice systems are deeply intertwined through the consideration of prior convictions in determining federal sentences.2 Which local convictions are given weight in federal sentencing and under what circumstances are central questions3
Both of these questions are common and complicated in the relationship between the United States and Indian tribes. Indians are subject to federal court jurisdiction for a broad swath of crimes that would typically be left to state courts when committed by non-Indians.4 Under the separate sovereigns doctrine, Indians may be prosecuted in tribal court and federal court for the same conduct.5 Tribal court convictions are not automatically included in the calculation of criminal history for federal sentencing as are prior federal or state court convictions.6
A fundamental question in federal criminal sentencing is what convictions are counted to determine criminal history based on their type, age, court of origin, and other factors.7 A fundamental question in federal Indian law is what level of tribal government sovereignty is recognized and accommodated.8 This article...