Criminal and sentencing

Enhanced sentencing is a records problem

Read 25 U.S.C. 1302(c) as an operations document rather than a statute and it stops being law and starts being a checklist for your office. Where a tribe imposes a total term of imprisonment of more than one year, it must satisfy five conditions, and each one produces evidence or it did not happen.

That is 1302(c) standing alone. In a special Tribal criminal jurisdiction case the trigger is far lower: 25 U.S.C. 1304(d)(2) imports the same five whenever imprisonment of any length may be imposed, which in practice means at charging, on any jailable offense.

Counsel. The defendant gets the right to effective assistance at least equal to the constitutional guarantee, and an indigent defendant gets a defense attorney at the tribe's expense who is licensed to practice by a jurisdiction that applies appropriate professional licensing standards. That is an appointment, a person, a license, and a date. It is a record.

The judge. The presiding judge must have sufficient legal training to preside over criminal proceedings and be licensed to practice law by a jurisdiction in the United States. That is a qualification held by a named person, sitting on a named day, on a named matter. It is a record.

The code. Prior to charging the defendant, the tribe must make its criminal laws publicly available, including regulations and interpretative documents, its rules of evidence, and its rules of criminal procedure, including the rules governing recusal. Read that again: prior to charging. It is not enough that your code exists. You have to be able to show it was published before the charge, which is a claim about your code on a date in the past. It is a record.

The proceeding. The tribe must maintain a record of the criminal proceeding, including an audio or other recording of the trial. The statute says the word out loud.

This is why we say the record is the qualification. Congress did not condition enhanced sentencing on a promise. It conditioned it on five things a court either can or cannot demonstrate, and a court that keeps a complete, attributed, sealed record can demonstrate every one of them on any day it is asked.

The numbers, exactly

The limits are specific and worth knowing precisely, because the difference between the two tiers is the difference between two different courts.

The baseline at 1302(a)(7)(B) is one year and $5,000 for any one offense. The enhanced ceiling at 1302(a)(7)(C) is three years and $15,000 for any one offense. The total cap at 1302(a)(7)(D) is nine years of imprisonment in any one criminal proceeding, which is what bounds stacking across counts.

The enhanced tier is also not available for every defendant. Under 1302(b), it reaches a defendant who has been previously convicted of the same or a comparable offense by any jurisdiction in the United States, or who is being prosecuted for an offense comparable to one that would carry more than a year if the United States or a State prosecuted it.

• 1 yearBaseline maximum per offense, with a $5,000 fine, at 25 U.S.C. 1302(a)(7)(B)
• 3 yearsEnhanced maximum per offense, with a $15,000 fine, at 1302(a)(7)(C), if 1302(c) is satisfied
• 9 yearsTotal imprisonment cap in any one criminal proceeding, at 1302(a)(7)(D)

Publishing your code before the charge is the quiet one

Of the five conditions, 1302(c)(4) is the one that catches courts, because it is the only one that is not about the courtroom. It asks whether the tribe made its criminal laws, its rules of evidence, and its rules of criminal procedure publicly available before the defendant was charged. Not now. Then.

That is a hard question to answer from a filing cabinet. It means knowing what your code said on a specific past date, knowing that the version was published, and being able to show both. A code that lives as a stack of amendments in a binder can tell you what it says today and very little about what it said in March.

It is also the condition where the rest of the system pays off. Your published code is the same code the court's deadlines are built from and cite. When the council amends a section, that section is the one the software points at, and the history of what it said before is retained rather than overwritten. The thing that makes a deadline explainable is the same thing that makes 1302(c)(4) answerable.

• What your code said, and when, retained version by version rather than overwritten by the latest amendment.
• The charge tied to the section it rests on, drawn from your own criminal code with the citation on the record.
• Counsel and the judge as attributed facts on the matter, so the 1302(c) conditions are shown from the file rather than asserted.
• The proceeding recorded, which the statute names outright, and held with the rest of the file.
• Every order sealed at the moment it issues, so a judgment produces identically years later.
• The person at the center, so a criminal matter, a protection order, and the family's other cases are one connected history.

Where federal law ends and your code begins

Federal law sets the ceiling and the conditions. It does not write your criminal code. What conduct is an offense, what your procedure looks like, how your court is structured, and whether the tribe pursues the enhanced tier at all are your nation's decisions, and they are not ours to assume.

So we build your code in. We sit with your court, section by section, and the rules that come out are the ones your council enacted, with each computed date carrying the section behind it. Where the office's practice differs from the written code, the system shows both and names the difference rather than quietly choosing one.

One honest note on scope. Criminal jurisdiction in Indian country is a genuinely complicated map, and which sovereign may prosecute whom for what depends on the parties, the place, the offense, and in some regions on federal statutes specific to that region. Nothing here decides that question for your nation, and nothing here is legal advice. What the system does is carry your code exactly and make the record answer for itself.

Questions courts ask about criminal matters

What is the most our court can impose?

Under the Indian Civil Rights Act baseline, a penalty no greater than imprisonment for one year or a $5,000 fine, or both, for any one offense. The higher tier at 1302(a)(7)(C), up to three years or $15,000 per offense with a nine-year cap on total imprisonment in one proceeding, has two independent gates. The court must satisfy all five conditions in 1302(c), and the defendant must fall inside 1302(b), meaning a prior conviction for the same or a comparable offense in any United States jurisdiction, or a current offense comparable to one carrying more than a year federally or in a State. Clearing 1302(c) alone does not open the door. Whether your nation pursues that tier is your decision.

What does it take to sentence past one year?

Five conditions, all from 1302(c): effective assistance of counsel at least equal to the constitutional guarantee; a defense attorney licensed to practice, provided at the tribe's expense for an indigent defendant; a presiding judge with sufficient legal training who is licensed to practice law; your criminal laws and rules of evidence and procedure made publicly available before charging; and a record of the proceeding including an audio or other recording. Every one of them is something you have to be able to show, which is the whole argument for keeping the record this way. Those five are the court's side of the gate. The defendant's side is 1302(b): the enhanced tier reaches only someone previously convicted of the same or a comparable offense in any United States jurisdiction, or prosecuted for an offense comparable to one that would carry more than a year if the United States or a State brought it.

How do we prove our code was published before the charge?

By keeping what your code said, and when, rather than only what it says now. Every version is retained and every amendment is dated, so the state of your published code on the day of a charge is a question with an answer instead of a reconstruction.