By Neil Fulton*
*Neil Fulton is the 14th Dean of University of South Dakota School of Law. He is a graduate of Yale University and the University of Minnesota School of Law. Prior to becoming Dean, he was Federal Public Defender for North and South Dakota. He worked regularly with sentencing issues from Indian Country and was a member of the United States Sentencing Commission’s ad hoc and standing Tribal Issues Advisory Groups. The author wishes to thank his friends in the FPD community for their work and for helpful comments on initial drafts of this article.
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. 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. Which local convictions are given weight in federal sentencing and under what circumstances are central questions
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. Under the separate sovereigns doctrine, Indians may be prosecuted in tribal court and federal court for the same conduct. Tribal court convictions are not automatically included in the calculation of criminal history for federal sentencing as are prior federal or state court convictions.
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. A fundamental question in federal Indian law is what level of tribal government sovereignty is recognized and accommodated. This article explores the intersection of those questions. It does so in light of a recent reevaluation by the United States Sentencing Commission (U.S.S.C) of how tribal court convictions are factored into criminal history calculations in federal sentencing. It seeks to explore different visions of “sovereignty” attributed to tribal governments by scholars and how those visions are effectively or ineffectively advanced by federal sentencing policy.
Part I of this article briefly traces the development of the relationship between the governments of the United States and Indian tribes. Part II traces the history of the United States Sentencing Guidelines. In particular, it reviews the history of the debate regarding how to consider tribal court convictions in calculating criminal history scores for federal sentences and the work of the ad hoc Tribal Issues Advisory Group (“TIAG”) appointed by U.S.S.C. in 2016 to consider sentencing issues relating to Indians and Indian Country. Part III considers how tribal sovereignty relates to federal sentencing policy. That section identifies and assesses competing views of tribal sovereignty and how those views relate to the consideration of tribal court judgments in federal sentencing. Part IV considers how the policy proposals recommended by TIAG and considered by the U.S.S.C. advance or fail to advance these visions of tribal sovereignty. Part V proposes a different vision of what tribal sovereignty can be in the context of federal sentencing and assesses whether the TIAG proposals effectively advance this vision of sovereignty. Lastly, it briefly discusses if this view of sovereignty is normatively superior.
It is an important caveat at the outset that this article includes both broad and highly specific considerations. Considering how tribal and federal courts interact and view their respective judgments goes to the heart of the right of tribes to self-determination and self-governance. In that sense, the article puts on the table the most fundamental questions of federal Indian law. However, these issues are assessed through the very specific lens of how prior convictions from tribal courts are, or are not, considered by federal courts in imposing sentences in criminal cases. In that sense, the article deals with a very discrete question.
But we must begin at the beginning. The current state of affairs is, inevitably, a product of history. The future requires some understanding of that history and, to a degree, a struggle against it.
 See e.g., U. S. Dep’t of Justice, Justice Manual, 9-2.030 (addressing general provisions for authorizing federal prosecution), 9-2.031 (“Petite Policy”) (addressing considerations for dual federal prosecution of crimes prosecuted in state courts).
 U.S.S.G. § 4A1.1. Criminal history points are assigned to prior convictions. A higher criminal history score results in a higher Sentencing Guideline range.
 U.S.S.G. § 4A1.2.
 See e.g., 18 U.S.C. §§1152, 1153.
 See United States v. Wheeler, 435 U.S. 313, 329-30 (1978); United States v. Lara, 541 U.S. 193, 208-10 (2004). In both of these cases, a significant question was whether the authority of the Indian tribal government to prosecute was inherent or delegated federal power. What powers a government possesses and who, if anyone, may limit those powers are key aspects of sovereignty. This question of “what is sovereignty” runs throughout the background of this paper.
 See U.S.S.G. § 4A1.2(i).
 See supra note 3.
 See e.g., Montana v. United States, 450 U.S. 544, 565–66 (1997) (outlining the scope of tribal adjudicatory and regulatory jurisdiction).