Constitutional Law - Equal Protection - Major Crimes Act, 18 U.S.C. 1153, Which Subjects Indian Convicted of Certain Offenses to Greater Sentence Than Non-Indian Convicted for Same Offense, Violates Equal Protection Principles Inherent in Fifth Amendment Due Process Clause

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Senkel, David P.
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INTRODUCTION|A member of an Indian tribe committing an aggravated assault while on an Indian reservation in South Dakota is subject to a maximum sentence ten times greater than a non-Indian prosecuted for an offense identical in nature and situs. In United States v. Big Crow, the Eighth Circuit Court of Appeals held the federal statutory authorization for the above sentencing disparity, the Major Crimes Act, to be invalid, as applied, through violation of the fifth amendment due process clause.|The Major Crimes Act extends federal jurisdiction to thirteen serious crimes committed by an Indian against either another Indian or a non-Indian within "Indian country. However, the same offenses committed by a non-Indian against an Indian on a reservation, although still within federal jurisdiction, are prosecuted under a different statute. Until the mid-1960's, when the Major Crimes Act was amended to incorporate state law for the definition and punishment of several of the enumerated crimes, defendants charged under either statute were tried and sentenced in accordance with federal criminal law. Pursuant to these amendments, an Indian committing an aggravated assault on a reservation is charged and sentenced under state law; while a non-Indian, under the same circumstances, is charged and sentenced under Federal law. The inherent dissimilarities between the federal criminal code and those of the several states create situations in which varying prosecutorial burdens and disparate maximum sentences may be applied for the same offense. As this potential for invidious discrimination depends on the defendant's classification as an Indian, the Major Crimes Act has been challenged by Indian defendants as a deprivation of equal protection of the laws. Such a constitutional attack arose in Big Crow...
9 Creighton L. Rev. 717 (1975-1976)
Creighton University School of Law
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