Topics

In the American criminal justice system, individuals from marginalized communities
routinely face longer terms and greater rates of incarceration compared to their
nonmarginalized counterparts. Because the literature on mass incarceration and
sentencing disparities has largely focused on the experiences of Black and Hispanic
individuals, far less attention has been paid to the overincarceration of Native peoples.
Yet there are clear indications that Native peoples are both overrepresented
within the criminal justice system and subject to unique sentencing disparities as
compared to other ethnicities. While these issues are partly motivated by traditional
drivers of criminal behavior, including access barriers to housing, employment, and
education, this Note argues that there is a greater systemic issue at play: the
enduring legacy of colonialism. Accounting for—and correcting—this legacy in the
criminal justice system is a complex task, though not an impossible one. For
example, over the past twenty years, the Canadian criminal justice system has
implemented a novel, remedial sentencing approach to address the overincarceration
of Aboriginal offenders: the Gladue approach. Recognizing the extent to
which the Canadian legal system has failed to account for the unique needs, experiences,
and circumstances of Aboriginal offenders, the Gladue approach mandates
an individualized and contextualized approach to sentencing, one which prioritizes
community-based alternatives to incarceration and emphasizes restorative justice.
This Note proposes two legal pathways by which to transplant the Gladue
approach to the American criminal justice system. In so doing, it offers the first
comprehensive analysis of the normative and constitutional implications of
applying the Gladue approach to the sentencing of Native peoples within the
United States. While the approach has challenges and shortcomings, it is nevertheless
a powerful tool by which the American criminal justice system can begin to
reckon with its colonial past and present.

In the current model of federal-Indian relations, the United States claims a plenary
legislative power, as putative guardian, to regulate Indian tribes. Under this model,
tribes are essentially wards in a state of pupilage. But the federal-tribal relationship
was not always so. Originally, the federal government embraced, even promoted, a
more robust model of tribal sovereignty in which federal-Indian treatymaking and
diplomacy figured prominently. Through treaties, the United States and tribes nego-
tiated territorial boundaries, forged alliances, facilitated trade, and otherwise man-
aged their relations. In 1871, Congress attempted to put an end to federal-Indian
treatymaking by purporting to strip tribes of their status as legitimate treaty part-
ners. In a rider to the 1871 Appropriations Act, Congress prohibited the recognition
of tribes as sovereign entities with whom the United States could negotiate treaties.
Since that time, the 1871 Act and the plenary power-pupilage model it entrenched
have grown deep roots in federal Indian law and the policies of the United States.
Congress has aggrandized its role in tribal life at the expense of tribal sovereignty,
and the coordinate branches of the federal government have acquiesced in this
foundational shift.

The literature of federal Indian law has wrestled with the doctrine of plenary power,
contemplated the fate of the federal-tribal treaty relationship, and questioned the
constitutionality of the 1871 rider. This Article posits new arguments for the uncon-
stitutionality of the 1871 Act, uprooting the presumptions underlying the Act and
revitalizing the prospect of federal-Indian treatymaking. Two recent developments
provide an opportunity for such a transformation. In Zivotofsky v. Kerry, the
Supreme Court held that the President alone possesses the power to recognize for-
eign states and governments. While Zivotofsky was a landmark case for U.S. for-
eign relations law, its potential significance for federal Indian law has gone
underappreciated. Zivotofsky did not directly address the locus of power to recog-
nize tribal sovereignty to enter treaties, but it prompts the question and provides a
blueprint for arriving at an answer. Engaging that blueprint, this Article argues that
the President possesses the exclusive power to recognize tribes’ sovereign capacity
to enter treaties. The result: The 1871 Act is unconstitutional because it attempts to
limit that power. In our view, the President can and should unilaterally reengage in
federal-Indian treatymaking, revitalizing treatymaking and reanimating the sover-
eignty model of federal-Indian relations.