American Indians, crime, and the law.

• Author: Washburn, Kevin K.

INTRODUCTION I. THE MODERN STRUCTURE AND PROCESS OF INDIAN COUNTRY CRIMINAL JUSTICE A. A Legal Description of the Indian Country Regime B. A Practical, Critical Description of the Process of an Indian Country Case II. FEDERAL PROSECUTORS IN INDIAN COUNTRY A. Community Values and the Foundation of Prosecutorial Discretion and Prosecutorial Accountability B. The Federal Prosecutor in Indian Country 1. The Prosecutor as Representative of the Community 2. The Accountability Problem 3. Federal Prosecutors and the Cavalry Effect 4. Obstacles to Tribal Governance and Self-Determination C. Concluding Thoughts about Federal Prosecutors III. JURIES AND JURY COMPOSITION IN INDIAN COUNTRY A. The Centrality of the Jury in American Criminal Justice B. Representative Juries and Anti-Discrimination in Jury Composition C. Underrepresentation of Native Americans on Indian Country Juries D. Legal Challenges E. A Critique of Jury Composition Cases in Indian Country 1. Representativeness and a Jury of One's Peers 2. Considering the Indian Law Context of These Cases 3. Focusing on "The Community" 4. Practical Effects of These Errors IV. PUBLIC ACCESS, VENUE, AND PUBLIC TRIALS A. Rights of Public Access to Criminal Trials 1. The Source and Rationale for the Right to Public Trials and Public Access 2. Public Access and Indian Country Defendants 3. Public Access and Indian Country Communities 4. Public Trials and Self-Government B. Venue, Vicinage, and Place of Trial V. A FRAMEWORK FOR ANALYSIS OF REFORM CONCLUSION INTRODUCTION

When a Navajo tribal member commits a serious felony against another Navajo on the remote Navajo Indian Reservation, the crime sets in motion not a tribal criminal investigation and tribal court proceeding, but a federal investigation and federal court proceeding under the federal Major Crimes Act. (1) For trial, the Navajo defendant, the Navajo victim, and the witnesses (all of whom are also likely to be Navajo) will be summoned to a federal district court far away from the reservation and the specific community where the crime occurred. Unlike a felony involving only non-Indians, which would be routinely adjudicated at the local county or district courthouse, the Navajo felony will be tried in a distant federal court in Phoenix, Salt Lake City, or Albuquerque. (2)

The federal court operates in a language that is foreign to many Navajos; thus the Navajo defendants, victims, and witnesses may require interpreters to translate the proceedings. Neither the judge, the court reporter, the prosecutor, (3) the court security officers, the deputy marshals, nor the defense attorney or investigator are likely to be Navajo or even understand or speak the Navajo language. Perhaps even more importantly, the federal jury that hears the evidence is unlikely to include a Navajo, or even an Indian, or any other member of the community where the crime occurred. (4)

While the Navajo Nation provides a compelling example of such alienation because it ranges across three states and is inhabited by more than 180,000 people in hundreds of distinct Indian communities, this federal criminal justice regime spans more than one hundred Indian reservations across the United States and involves thousands of federal cases opened each year within "Indian country" as that term is defined by federal law. (5) Thus, similar circumstances can be described for many other Indian tribes and their reservations, such as the Jicarilla Apache in northern New Mexico, the Hualapi who live adjacent to the Grand Canyon in Arizona, the Red Lake Chippewa in northern Minnesota, or the various Chippewa and Potawatomi tribes in Michigan's upper peninsula.

Serious practical problems arise by virtue of the vast distances between some Indian reservations and the federal courts that serve them. Consider, for example, the challenge facing a victim or witness from the Red Lake Band of Ojibwe Reservation near the Canadian border in northern Minnesota who may be required by federal summons to travel 250 miles or more of back roads and highways to reach federal court in St. Paul or Minneapolis, Minnesota. (6) While such distances would be daunting to anyone, residents of Indian reservations (and certainly victims and witnesses to violent crime) tend to have incomes well below the poverty level. (7) It is fair to assume that most reservation residents drive vehicles consistent with their respective income levels. (8) Indeed, the "Indian car" has become nearly as fabled today as the Plains Indian pony was in the past, but for vastly different reasons. (9)

In sum, a witness in an Indian country case may be facing a five-hour or longer drive in an untrustworthy vehicle in a northern winter with nothing to look forward to but being forced to speak in public in front of a large group of non-Indian strangers, or being forced to endure a painful cross-examination in which her motives and perhaps her character will be questioned. (10) Consider also the unfortunate federal prosecutor (11) or defense attorney: a harried trial attorney working hard to marshal the evidence in a criminal case while nervously looking out the window of the federal courthouse (at falling snow in Minneapolis in winter or the scorching desert terrain in Arizona in the summer time) and desperately hoping that her witnesses appear on time to testify. (12)

As a result of a series of federal statutes, felony criminal justice is primarily a federal responsibility on hundreds of Indian reservations in the Southeast, the Midwest, and throughout the western United States. (13) Though the problems identified above are simple, practical obstacles to effective criminal justice, they may represent problems that are far more serious. In the United States, criminal justice is an inherently local activity as a matter of constitutional design; American criminal justice systems are carefully designed to empower local communities to solve internal problems and to restore peace and harmony in the community. Viewed in this light, many of the practical problems outlined above, and more serious ones discussed below, may represent violations of fundamental constitutional norms. In short, federal justice in Indian country simply may not accord with many of the basic legal principles that guide American courts, prosecutors, and law enforcement officials.

Consider some of the most obvious questions raised by a federal Indian country prosecution: Does an Indian defendant receive a trial by a jury of his peers when he faces a federal jury in a distant city composed of non-Indians who are foreign to the Indian community, who may very well speak a different language and who are subject to a different set of laws and a different process for adjudicating them? Does an Indian community have a voice in issues of public safety when its local felonies are prosecuted, defended, and adjudicated in distant and foreign tribunals by federal officials who are not accountable to tribal leaders or the community? Are basic requirements of fairness and due process met when defendants, crime victims, and witnesses are summoned to court hundreds of miles away to testify about simple but serious local crimes that occurred in their own backyards? Can a community enjoy its right to a "public trial" when a local crime is adjudicated in a non-televised trial hundreds of miles away in a city that is difficult to reach from the reservation? As these questions suggest, (14) the federal Indian country criminal justice scheme is subject to a host of criticisms derived from implicit constitutional values of federalism and localism and explicit constitutional requirements of criminal procedure.

Among the chief sources of criticism of the federal Indian country criminal justice system is the prevalence of crime against Indians. (15) Indians are far more likely than members of all other major racial classes to be victims of violent crime. An American Indian or Alaska Native is two-and-a-half times more likely than a member of the general public to be a victim of violent crime and twice as likely as an African American. (16) From 1992 through 2001, the average annual rate of violent victimizations among Indians was 101 per 1,000 residents twelve years of age and older. (17) This compares to fifty violent victimizations per 1,000 blacks, forty-one per 1,000 whites and twenty-two per 1,000 Asians. (18) Sexual offenses against women and children are especially serious problems in Indian country. (19)

In discussing the high crime rates on Indian reservations, academics fault federal prosecutors and law enforcement agents who are accused of declining meritorious prosecutions, particularly of non-Indian offenders. Congress has found fault too, but has treated the issue as a resource allocation problem. In recent years, Congress has dramatically increased funding and positions for federal prosecutors and FBI agents who work these cases. But the problems that exist in Indian country criminal justice may be far deeper than a lack of enthusiasm by federal prosecutors or an insufficient number of federal prosecutors and investigators to perform the tasks. It may stem from structural problems in the system.

For thirty-five years, federal policymakers have moved more and more decisively in the context of Indian law and policy toward an approach that fosters "tribal self-determination" and have sought to restore the powers of tribal governments. As a result of the advance of federal Indian policy, the federal criminal justice system in Indian country no longer rests comfortably within the mainstream of federal Indian policy. To some degree it seems to be a relic, perhaps, of colonialism. While the notion of community "self-determination" has been enthusiastically embraced only fairly recently in federal Indian policy, it is a long-standing and hallowed norm in American criminal justice. Indeed, many of the key institutions of the federal criminal justice system...