Breaking with his colleagues in other states, a federal judge has told the government and an American Indian defendant in Colorado that he cannot accept the parties’ plea deal because Congress has not authorized him to consider the offense.

The March 2 decision of U.S. District Court Senior Judge Robert E. Blackburn to reject the proposed plea agreement for Kaleb English revolved around the authority Congress granted to federal courts more than a century ago to hear certain criminal offenses involving American Indian defendants in “Indian Country.” In English’s case, he allegedly assaulted a woman within the borders of the Southern Ute Indian Reservation.

But when federal prosecutors and English agreed that he would plead guilty to a lesser crime of simple assault, Blackburn noted the offense no longer fell within the list of crimes Congress had empowered him to hear. Consequently, simple assault was under the tribal court’s jurisdiction and Blackburn refused to infringe on tribal sovereignty or impose a conviction that could potentially be overturned.

“Nor can I fathom why the government would wish to risk the danger that Mr. English might later challenge the court’s jurisdiction to convict him of the crime to which he pled guilty,” he wrote.

Congress enacted the Major Crimes Act in 1885 to give federal courts jurisdiction over certain serious crimes, including murder and assault, committed by an American Indian within tribal territory. Lawmakers anticipated the measure would enable American Indians to be “civilized a great deal sooner.”

Nine decades later, the U.S. Supreme Court confronted the question of whether an American Indian charged under the Major Crimes Act could have his jury instructed on convicting him for a lesser offense, even if it was not included in the Major Crimes Act. The court, in Keeble v. United States, said yes, reasoning Congress did not intend to deprive American Indians of the procedural rights all other defendants have.

Blackburn rebuffed the notion that Keeble had anything to do with plea bargaining, and rejected the reasoning of federal judges who found otherwise. Scholars on Indian law held mixed views about Blackburn’s interpretation.

“I really think Keeble settles this – it’s not much of an extension of Keeble to say that the feds can still convict someone in a plea deal of a lesser included offense,” said Matthew L.M. Fletcher, a tribal appellate judge and professor who writes about Indian law at the University of Michigan.

“As a formal matter, I think that the court is correct here,” countered Kevin Washburn, dean of the University of Iowa’s law school and the former assistant secretary of Indian Affairs under the Obama administration. “To do otherwise would undermine the actions of Congress in preserving tribal sovereignty.”

Last year, a federal grand jury indicted English, who is American Indian, for allegedly kidnapping and assaulting his partner. Both offenses fall under the Major Crimes Act. Subsequently, he reached an agreement with federal prosecutors in which English would plead guilty to simple assault and receive supervised probation, domestic violence treatment and restrictions on his liberty.

Anticipating a potential problem, the government argued Keeble enabled a plea deal for a crime not listed in the Major Crimes Act, quoting federal judges in Idaho and South Dakota who gave the green light to such agreements.

“This is especially important because most charges in federal court are resolved through plea bargaining,” wrote Lisa Franceware, special assistant to the U.S. attorney. “Withholding a benefit taken by the vast majority of federal defendants only to Indian defendants charged under the Major Crimes Act cannot be harmonized with Keeble.“

However, on Feb. 8, U.S. Magistrate Judge James M. Candelaria rejected English’s plea deal on the grounds that only the tribal court had authority to hear a simple assault offense. The government objected to Blackburn, and English also claimed Candelaria’s interpretation violated his rights.

Blackburn was unmoved. He believed none of the other federal judges’ contrary conclusions were persuasive because they failed to show “adequate deference to the exclusive jurisdiction of the tribal courts, which emanates from their inherent sovereign authority over all crimes not specifically enumerated in the Major Crimes Act.”

Blackburn added that an American Indian defendant’s rights at trial did not logically extend to plea bargaining. Further, he worried about federal prosecutors “over-charging” certain crimes in order to assert jurisdiction under the Major Crimes Act, only to negotiate a more realistic offense that falls outside of the law.

“I find this danger far more worrisome,” Blackburn wrote.

Fletcher, the Michigan professor, said he would expect the Supreme Court to review the issue eventually. Washburn, of the University of Iowa, believed the “simple solution” is for the defendant and federal prosecutors to work toward a guilty plea in tribal court, then dismiss the federal case.

The case is United States v. English.