Let the Jury Fit the Crime: Increasing Native American Jury Pool Representation in Federal Judicial Districts with Indian Country Criminal Jurisdiction

77 Montana Law Review 281 (2016)

33 Pages Posted: 12 Jul 2016 Last revised: 21 Aug 2017

See all articles by Jordan Gross

Jordan Gross

Alexander Blewett III School of Law at the University of Montana

Date Written: September 10, 2015


Federal law allocates jurisdiction to prosecute and punish crimes committed in Indian country based on the race of the perpetrator, the race of the victim, and the federal political status of the Indian tribe on whose land the crime was committed. At the founding, Indian tribes had plenary authority to address and punish all crimes committed in Indian country. Congress systematically stripped away most of this authority and allocated it either to the federal government or to individual states, leaving Indian tribes with severely restricted jurisdiction over individuals who commit crimes on their reservations. The primary federal statute for prosecuting crimes committed in Indian country is the Major Crimes Act. This statute gives the federal government authority to prosecute and punish enumerated crimes committed by Indians on reservations that are subject to federal criminal jurisdiction. These crimes typically also violate the criminal code of the tribe on whose reservation the crime is committed. This gives rise to concurrent federal and tribal criminal jurisdiction over the same defendant for the same conduct.

Under federal constitutional law, jury pools must reflect a fair cross section of the community in which a crime is prosecuted and from which no distinct group in the community has been excluded. These jury selection standards apply to the states through the Fourteenth Amendment, and they are codified into federal law under the Jury Selection and Service Act of 1968. These standards reflect a notion ingrained in American criminal justice that an accused should be judged by a jury of his peers in the community where the crime was committed. These legal principles, however, reflect more than a popular normative ideal of what an American jury should look like. They are also the product of a Supreme Court jurisprudence targeted at eradicating the practice of excluding potential jurors from service on the basis of race.

Whether a jury pool satisfies the fair cross section guarantees and the systematic exclusion prohibition is measured against “the community” from which a jury pool is drawn. Thus, how “community” is defined for jury selection purposes becomes critically important in evaluating whether a defendant’s jury pool reflects a fair cross section of that community from which no distinct group in that community has been systematically excluded. Federal, state and tribal courts use different jury pool boundaries for jury selection purposes. Federal district courts typically draw jury pools from large, multi-county areas; states from smaller judicial districts; and tribes from reservation communities. The three sovereigns, thus, will look to different “communities” from which to draw their jury pools, and that will often result in jury pools (and ultimately trial juries) with very different racial demographics.

When jury pool boundaries in federal districts with Indian country jurisdiction extend beyond a reservation on which a crime was committed and include non-reservation communities, the representation of Native Americans in that pool is naturally and inevitably diluted. In an Indian country prosecution with concurrent federal/tribal jurisdiction, this means the reference jury selection “community” for the same defendant (by definition, an Indian) will be radically different depending on whether he is tried in federal or tribal court. In federal court, this Indian defendant will face a jury drawn from a pool with a significantly smaller concentration of his ethnic and cultural peers than that found on the reservation on which the crime was committed. This same defendant in tribal court will face a jury drawn from the reservation community, the actual community in which the crime was committed and in which Native Americans will typically represent a majority of the residents. Federal Indian country prosecutions are typically tried off-reservation and, as a result of federal jury selection procedures, the Indian defendants in those cases are tried by juries drawn from communities that look nothing like the “community” from which that defendant’s jury would otherwise be drawn if not for Congress’ usurpation and limitation of tribal court jurisdiction over crimes committed on reservations.

This article argues that to the extent federal jury selection procedures result in a significant and quantifiable dilution of Native American representation in federal Indian country jury pools, they are incompatible with the anti-discrimination policies and fair cross section requirements of the federal Jury Selection and Service Act, federalism, and tribal sovereignty. The article forwards two proposals to lessen the dilution of Native American representation in federal jury pools in judicial districts with Indian country criminal jurisdiction. One, organize divisions in those districts around Indian reservations in such a way that increases the concentration of Native Americans in the jury pools in those divisions. Two, expand the sources from which those districts compile potential juror lists to include, at a minimum, tribal voter registration records. This article looks to the District of Montana, a federal jurisdiction with a significant number of Indian country criminal prosecutions, to demonstrate the feasibility of these proposals.

Keywords: Jury Selection; Criminal Procedure; Indian Country Procedure; Sixth Amendment; Indian Civil Rights Act; ICRA

Suggested Citation

Gross, Jordan, Let the Jury Fit the Crime: Increasing Native American Jury Pool Representation in Federal Judicial Districts with Indian Country Criminal Jurisdiction (September 10, 2015). 77 Montana Law Review 281 (2016), Available at SSRN: https://ssrn.com/abstract=2807608

Jordan Gross (Contact Author)

Alexander Blewett III School of Law at the University of Montana ( email )

Missoula, MT 59812-0002
United States

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