American Indians, Crime, and the Law

This Article evaluates the federal Indian country criminal justice regime, not against norms of Indian law and policy, but against those of criminal law and policy. Specifically, this Article evaluates the federal constitutional norms that lie at the heart of American criminal justice and that are designed to ensure the legitimacy of federal criminal trials. Toward that end, Part I presents a critical description of key facets of the federal Indian country criminal justice system. Part II begins the critical evaluation by evaluating a key institutional player in the federal system, the federal prosecutor. It highlights the handicaps faced by federal prosecutors in Indian country prosecutions and questions whether prosecutorial discretion can be exercised appropriately when “outsiders” prosecute local crimes in Indian country. Part III focuses on another key institution in criminal justice, the jury. It describes the role that juries serve in American criminal justice and explains why federal juries in Indian country cases cannot perform some of these functions, leaving them inadequate under the Sixth Amendment. Part IV turns to the somewhat related topics of venue and the right to a public trial, examining whether the existing Major Crimes Act system is consistent with prevailing First Amendment values of public access and general constitutional principles of venue and vicinage in criminal cases.