September 22, 2013 Comments Off on JURIES, VENUE, AND THE MAJOR CRIMES ACT: RECENT SCHOLARSHIP
A recent comment published in the Wyoming Law Review argues that federal law on jury pools and venue, when applied to Indian country criminal cases, is not consistent with Major Crimes Act. The Major Crimes Act gives the federal courts jurisdiction over most felonies occurring on reservation land and was upheld in United States v. Kagama, 118 U.S. 735 (1886). The Major Crimes Act is unique because it creates jurisdictional limitations based on geography (within Indian country) and racial-political identity (Indian v. non-Indian).
First, the author shows that the location—or vicinage—of a criminal case is so important in United States jurisprudence that the Founding Fathers included it in the Constitution. Under Article III and the Sixth Amendment, criminal cases must be tried in the “district wherein the crime shall have been committed.” In addition, the Federal Rules of Criminal Procedure call for criminal cases to be heard in a location that is convenient for the defendant, victims, witnesses, and the “prompt administration of justice.” The purpose of these rules is to promote public participation and scrutiny of the prosecutor and the legal process. The author then argues that, in light of the unique jurisdictional limitations of the Major Crimes Act, the victim of the crime should be seen as the reservation and the surrounding community and that the federal prosecutor is representing this specific community of Indians and local non-Indians.
Second, the author reviews the federal jury selection process. This process is designed to select a jury from a representative cross-section of the district or division where the court is situated (usually a state or a large portion of a state). The author then argues that the federal jury selection process is inconsistent with the Major Crimes Act because most crimes prosecuted under the Act occur in areas of a district or division that are more densely populated by Indians—raising a possible fairness issue under the Sixth Amendment. By contrast, in state-level cases, the venire (the pool from which the jury is selected) is drawn from citizens within each county. Since offenses under the Major Crimes Act would otherwise be prosecuted under state law, the author suggests this state-level contrast further supports an inconsistency between the federal jury selection process and the Major Crimes Act.
The author concludes by suggesting a number of changes intended to overcome these inconsistencies. One suggestion is that federal district courts hearing cases under the Major Crimes Act hold court in locations closer to the specific community affected by the crime. Under the Tribal Law and Order Act of 2010, federal prosecutors and courts are required to at least attempt to conduct trials and other proceedings in Indian country. Another suggestion is to improve the process of identifying jury venires in Major Crimes Act cases so that the venire is a more representative cross-section of the affected community. Possible solutions include identifying jury pools from federal income tax filings, tribal voter registration rolls, tribal membership rolls, or other public records related to Indian country.
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