Major Crimes and Major Inequality

Murder. Manslaughter. Rape. Assault with intent to commit murder. Arson. Burglary. Larceny.

The Major Crimes Act, passed in 1885, which removed Native American Tribes' ability to prosecute these seven crimes within the tribe. Since 1885, these crimes have been handled by Federal courts. This act curbed the sovereignty of Native American tribes, and today, results in longer sentences for Native Americans on reservations who commit these crimes.

For the most part, if you dear reader, committed a crime, you would end up in your state court. State court handles cases where someone has broken the state law, which covers most of the crimes you can think of committing. Robbery, assault, and yes, murder, are for the most part, prosecuted in state court. The crimes prosecuted in Federal court are mostly limited to crimes where someone violates the US Constitution, has a dispute or commits a crime across state lines (drug trafficking, for example), and cases where the United States is party (where the laws of the United States are being challenged).

Federal court is also used to prosecute these seven major crimes committed on Native American reservations. And unfortunately, these crimes, all prosecuted at the state level normally, often lead to longer sentences for Native Americans.

In South Dakota, assault prosecuted in state court receives an average sentence of 29 months. Native Americans prosecuted federally in South Dakota receive 47 months for assault. In New Mexico, my home state, the disparity is even greater. The average sentence for someone who commits assault on state land is 6 months. The average sentence for someone who commits assault on a reservation, and is prosecuted in Federal court is 54 months.

Not only are Native Americans being incarcerated at rates 38% higher than the national average, they are also serving longer sentences for the same crimes. Across the board, "state punishments for the same crimes tend to be lighter," says Ralph Erickson, a judge in North Dakota.

On top of all the injustices Native Americans face in this country, a law from 1885 is ensuring that they serve more time in prison than people who do not live on reservations. There has to be a way to ensure that people who commit crimes are sentenced at the same rates, no matter where they live, without compromising the sovereignty of reservations. Assault is terrible no matter where it is committed, but there is no logical reason that people on reservations should serve 54 months, when those not on reservations are only serving 6.

First Published: August 30, 2015