An Unfair Cross Section: Federal Jurisdiction for Indian Country Crimes Dismantles Jury Community Conscience

Under the Sixth Amendment to the United States Constitution, federal 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 is excluded. The community in which a crime is prosecuted varies widely in Indian country based on legislative reforms enacted by Congress to strip indigenous populations of their inherent sovereignty. Under the Major Crimes Act, the federal government has the right to adjudicate all serious crimes committed by one American Indian against another American Indian or non-Indian within Indian country. American Indian defendants under the Major Crimes Act are thus placed in federal district court for a crime that would ordinarily be tried in a local courtroom with a local jury. Instead, the American Indian defendant will receive a jury drawn from the entire federal district, a jury that, by its constitutional guarantee, will reflect a fair cross section of the federal community—one that is mostly, if not entirely, white and non-Indian. This framework is unfair for American Indians. Congress justifies this unique jurisdictional framework by citing the federal government’s own historically exceptional treatment of American Indians as dependent sovereigns, supposedly meant to protect American Indians’ interests. Following that same logic, the federal government should enact legislation to target the fair cross section standard as it applies to American Indians and protect American Indians’ interests in self-governance. Assuming the federal government insists on retaining its jurisdiction in Major Crimes Act cases, it should create a procedural safeguard in cases where the defendant is placed in federal district court based on their designation as an American Indian. This safeguard should ensure that American Indian defendants receive a jury with an indigenous community conscience by locking the number of American Indian jurors that appear on a federal jury trial to at least six, or redefining “community” to mean “Indian country.