R EPORT OF THE T I RIBAL SSUES A G DVISORY ROUP May 16, 2016 TABLE OF CONTENTS EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 THE TIAG’S AUTHORIZATION, PURPOSE AND WORK . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 REPORT AND RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 I. Tribal/Federal Working Group Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . 5 II. Tribal Court Convictions/Criminal History/Court Protection Orders Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 III. Sentencing Disparities Working Group Recommendations . . . . . . . . . . . . . . . . . . 15 IV. Juvenile Justice/Youth Offenders/Crimes Against Children Recommendations . . 29 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41 EXECUTIVE SUMMARY The Tribal Issues Advisory Group (“the TIAG”) makes several recommendations to the United States Sentencing Commission (“the Commission”) for revisions and additions to the Sentencing Guidelines (“the Guidelines”), for tribal consultation, and for other changes. The TIAG suggests that the following revisions be made to the Guidelines: (1) Adding an application note and commentary to USSG §4A1.3 to guide when tribal court convictions may be considered for a possible upward departure in the defendant’s criminal history category; (2) Including in USSG §1B1.1 a definition of “court protection order;” (3) Amending USSG §5H1.1 regarding the “age” policy statement; and (4) Adding a departure concerning juvenile and youthful offenders as USSG §5K2.25. The TIAG recommends that the Commission adopt certain policy changes including: (1) Establishing a standing advisory group on tribal issues to assist the Commission on changes to the Guidelines impacting American Indian defendants, to advise on and assist in tribal consultation, and to form the basis for a new TIAG when appropriate; (2) Creating a process for the collection of better data on federal court sentencing to allow for study of the protection order provisions of the Guidelines and analysis of sentencing disparity concerns as detailed herein; and (3) Considering the recommendations of other working groups regarding juvenile offenders, including possibly collapsing sentencing zones A, B, and C into a single zone. The TIAG also recommends that the Commission support changes in federal law and practice including: (1) Congressional action that incentivizes states and requires appropriate federal agencies to collect data on state court sentencing of defendants generally and Native American defendants in particular so that better data exists to analyze whether and where there truly are sentencing disparities; (2) Increased use of pretrial diversion agreements by United States Attorneys’ offices; (3) Increased use by law enforcement in Indian country of misdemeanor statements of charges and Central Violations Bureau misdemeanor citations to non-Indians in Indian country; (4) Better training of federal employees who work in Indian country about Native American history and culture; and (5) Revisions to the Juvenile Delinquency Act, 18 U.S.C. § 5032, to require federal consultation with tribes in certain juvenile case prosecutions. This Report provides the basis for and an explanation of these and other recommendations. 2 THE TIAG’S AUTHORIZATION, PURPOSE, AND WORK The Commission established the TIAG as an ad hoc advisory group to the Commission under 28 U.S.C. § 995 and Rule 5.4 of the Commission’s Rules of Practice and Procedure. The Commission specified the purpose of the TIAG to be: (1) to assist the Commission in carrying out its statutory responsibilities under 28 U.S.C. § 994(o); (2) to provide to the Commission its views on federal sentencing issues relating to American Indian defendants and victims and to offenses committed in Indian Country; (3) to study— (A) the operation of the federal sentencing guidelines as they relate to American Indian defendants and victims and to offenses committed in Indian Country, and any viable methods for revising the guidelines to (i) improve their operation or (ii) address particular concerns of tribal communities and courts; (B) whether there are disparities in the application of the federal sentencing guidelines to American Indian defendants, and, if so, how to address them; (C) the impact of the federal sentencing guidelines on offenses committed in Indian Country in comparison with analogous offenses prosecuted in state courts and tribal courts; (D) the use of tribal court convictions in the computation of criminal history scores, risk assessment, and for other purposes; (E) how the federal sentencing guidelines should account for protection orders issued by tribal courts; and (F) any other issues relating to American Indian defendants and victims, or to offenses committed in Indian Country, that the TIAG considers appropriate; (4) to recommend to the Commission means to establish regular and meaningful consultation and collaboration with tribal officials in the development of sentencing policies that have tribal implications; and (5) to perform any other related functions as the Commission requests. The TIAG’s members, who are listed at Appendix A hereto, have met at least monthly through conference calls and in person in Washington D.C. on May 19 and 20, 2015; in Bismarck and on the Standing Rock Sioux Reservation in North Dakota, on October 8 and 9, 2015; and on the Pascua Yaqui Reservation in Arizona, on February 23 and 24, 2016. The TIAG formed the following four subcommittees to focus on particular areas: (1) Tribal/Federal Working Group; (2) 3 Tribal Convictions/Criminal History/Court Protection Orders; (3) Sentencing Disparities; and (4) Juvenile Justice/Youth Offenders/Crimes Against Children. These TIAG subcommittees have met multiple times both by teleconference and in person in Washington D.C., North Dakota, and Arizona. All members of the TIAG considered recommendations from the subcommittees. The TIAG formed a fifth subcommittee responsible for report drafting. This Report uses the word “Indian,”1 because that is a legal term that appears in statutes of the United States to mean a person with Native American heritage who is an enrolled member of a federally recognized tribe or whose relationship with a tribe is such that the federal government recognizes that person as an Indian.2 This Report at times uses “Native American” or “American Indian” to refer to those who have ancestors who predated arrival of Europeans in the Americas. Not all Native Americans or American Indians are “Indian” within the legal meaning of that term because, among other things, the federal government has terminated some Indian tribes and relationships with some members of such tribes.3 Federal court criminal jurisdiction over Native Americans typically requires proof that the defendant is an “Indian” and that the offense occurred in “Indian country,” unless the criminal offense is within the general federal criminal jurisdiction for offenses such as drug crimes. 1 See F.T.C. v. Payday Financial, LLC, 935 F.Supp.2d 926, 929 n.1 (D.S.D. 2013) (noting that the legal term “Indian” is not meant to be pejorative, but rather it derives from the mistaken belief of early European explorers in North American that they had encountered people in the East Indies). 2 United States v. Stymiest, 581 F.3d 759, 762-764 (8th Cir. 2009). 3 See St. Cloud v. United States, 702 F.Supp. 1456, 1461-66 (D.S.D. 1988). 4