American Indians, Crime, and the Law

Abstract

The federal criminal justice regime, which governs hundreds of federal Indian reservations across the United States, gives federal prosecutors, federal judges and federal juries the important responsibility of providing criminal justice for serious local crimes on Indian reservations and also for many less serious offenses. Because Indian country offenses are, by definition, local crimes with little national impact, this work is an unusual part of the federal docket. If public safety is any measure, these institutions are utterly failing. For a variety of reasons, including history and geography, federal prosecutors and investigators face numerous practical obstacles in performing their jobs in Indian country. Likewise, because federal grand juries and trial juries for Indian country cases tend to be constituted from the general population of a federal judicial district rather than from within the boundaries of the courts' Indian country jurisdiction, these juries fail to represent fair cross-sections of the Indian country community. Such juries cannot serve the community-representative functions envisioned by the Constitution. As a result, federal Indian country trials operate in a manner inconsistent with basic American norms of criminal justice, such as those set forth in the First and Sixth Amendments to the United States Constitution. And federal Indian country convictions therefore lack important hallmarks of legitimacy and raise serious constitutional concerns. According to this constitutional critique, the federal criminal justice system on Indian reservations should be reconceived to give life to existing federal constitutional norms or repealed in favor of an approach more consistent with constitutional values and modern federal policy.