Tribe passes enhanced sentencing law

August 23, 2012

Cherokee recently passed legislation during the August Session of Tribal Council which updated the Cherokee Criminal Code and finalized the full implementation of the enhanced sentencing authority granted by the federal Tribal Law and Order Act of 2010.  Cherokee Ordinance Number 182 was passed by Tribal Council on Aug. 2 and ratified by Principal Chief Michell Hicks on Aug. 16.  The Ordinance increased the maximum possible punishment of all felony-equivalent tribal crimes from one year to three years imprisonment and from a $5,000 to a $15,000 fine.

The Tribal Law and Order Act of 2010 granted enhanced, felony-level sentencing authority to tribal courts by increasing the maximum possible punishment that a tribal court may hand down from one year of imprisonment and a $5,000 fine per offense to three years of imprisonment and a $15,000 fine per offense, with a provision for stacking up to three offenses in certain criminal cases which could result in a maximum possible punishment of nine years of imprisonment (25 U.S.C. § 1302).  Before tribes can enact legislation to implement this enhanced punishment, the federal law requires that the tribal courts have law-trained judges, provide defendants with the right to effective assistance of counsel and indigent defendants with court appointed counsel, and make the tribal laws publically available, among other things.  The Cherokee Court has met all of these requirements, even for many years prior to the enactment of the Tribal Law and Order Act.

“I think what’s important to understand, to put things into perspective, is that looking at a neighboring jurisdiction, the State of North Carolina, for instance, the large majority of its felony-level crimes are not punishable by more than three years imprisonment.  In fact, Class E through I felonies in North Carolina are punishable by three years imprisonment or less.  This would include most of North Carolina’s drug, property and serious assault crimes,” said Jason Smith, Tribal Prosecutor for the Eastern Band of Cherokee Indians.

Smith continued, “I think this legislation is a huge first step toward increasing the sentencing authority of the Cherokee Court.  The Office of the Tribal Prosecutor along with the Chief and Vice-Chief, other Cherokee officials, members of the Tribal Council, and Cherokee Court continue to work hard together, locally and nationally with federal agencies and other tribes, to increase tribal courts’ criminal jurisdiction and criminal sentencing authority.”

Cherokee Ordinance Number 182 was the final step in amending the Cherokee Criminal Code to reflect the enhanced felony-level sentencing authorized by the Tribal Law and Order Act.  Cherokee previously enhanced the punishment for its Sexual Abuse and Sex Offender statutes in May 2011 in Ordinance Numbers 705 and 706.  Cherokee also enacted legislation during the recent August  2012 Session of Tribal Council in Ordinance Number 210 making it a crime punishable by three years imprisonment to possess or access child pornography.

- Office of the Tribal Prosecutor