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Sovereign Injustice: Why Now Is the Time To Grant Tribal Nations True Autonomy in Criminal Prosecutions


Generally speaking, if a murder takes place in Oklahoma, the district attorney’s office can prosecute the perpetrator, and the state court can, upon conviction, select among a wide range of sentences to bring justice to the victim. But if a murder takes place within Indian Country in Oklahoma, a tribal prosecutor has a different set of options. In the event that both the victim and alleged perpetrator are Natives, the prosecutor can charge the perpetrator in tribal court, where he or she will face a maximum of three years imprisonment for the alleged crime. In the alternative, the prosecutor can refer such a case to the U.S. Attorney’s Office in hopes that federal prosecutors have the resources and motivation to intervene and pursue a longer sentence.

In this way, federal Indian policy creates discrepancies and injustices among Natives by stripping them of their sovereign autonomy. This Note explains how a crime between two Natives taking place on Native land stands at the crossroads of two sovereigns but is ultimately under the authority and discretion of the United States government. It then argues that Congress’s rigid sentencing restrictions on tribal nations prosecuting crimes under the Indian Civil Rights Act interferes with a tribal nation’s guaranteed right to self-determination and thus, must be eliminated under international law. In an effort to preserve this guaranteed right, this Note proposes an overdue amendment to Section 1302(b) of the Indian Civil Rights Act which restricts a tribal court’s ability to hand down a sentence greater than three years irrespective of the crime.