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.

For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.


INDIAN COUNTRY INVESTIGATIONS AND PROSECUTIONS, 2011-2012: Annual Report to Congress by the U.S. Department of Justice

July 4, 2013 Comments Off on INDIAN COUNTRY INVESTIGATIONS AND PROSECUTIONS, 2011-2012: Annual Report to Congress by the U.S. Department of Justice

The U.S. Department of Justice (DOJ) recently issued its first annual report on Indian Country Investigations and Prosecutions as required by the Tribal Law and Order Act of 2010. The Tribal Law and Order Act (TLOA) is broad legislation designed to improve and enhance law enforcement in Indian country. Among many other measures to improve law enforcement, the TLOA seeks to hold federal agencies accountable by requiring the Department of Justice to file an annual report with Congress on criminal investigations and prosecutions in Indian country.[1]

The DOJ’s report, which covers only criminal matters reported to federal (and not tribal or state) agencies, reflects the increased priority placed on law enforcement efforts in Indian country and provides data showing an increase in the criminal caseload of federal agencies of 54% between 2009 and 2012. The report’s executive summary sets forth several major points based on the data:

  1. The FBI referred a “substantial majority” of Indian country criminal investigations to the U.S. Attorney’s Office (USAO) for prosecution.
  2. The USAO prosecuted a “substantial majority” of the Indian country criminal cases it opened.
  3. When the FBI did not refer a case to the USAO (but instead closed its investigation), the most common reason was the FBI’s conclusion that no federal crime had occurred.
  4. When the FBI investigated a death, but closed the investigation without a referral to the USAO for prosecution, the primary reason was a conclusion that the death was due to an accident, suicide, or natural causes.
  5. In 2011, the USAO declined to prosecute just under 37% of Indian country criminal cases submitted to it for prosecution. In 2012, the USAO declined to prosecute approximately 31% of Indian country cases submitted. The two most common reasons for declining to prosecute were insufficient evidence (61% of cases in 2011 and 52% in 2012) and referral to another prosecuting authority (19% in 2011 and 24% in 2012).

A copy of the DOJ’s report is available here.

For more information on the legal services offered by the Law Office of James D. Griffith, P.L.L.C., please call (480) 275-8738 or use the “Contact Us” page on our website.

[1] Other steps to improve law enforcement under the TLOA include increased training and funding for Bureau of Indian Affairs and tribal law enforcement officers, improved communication and coordination of efforts between the U.S. Attorney’s Office and tribal officials, increased sentencing authority granted to tribal courts, deputization of tribal prosecutors that allows prosecution in federal court, and prevention and treatment programs focusing on at-risk youth and drug and alcohol problems.

Where Am I?

You are currently browsing the Tribal Law and Order Act category at James D. Griffith, Associate Attorney.