On Federal Juries and American Indian Defendants

Commentators (for example, here and here) have been noting in response to Grassley’s concern that white male perpetrators will not benefit from a jury of their peers in tribal courts that Indian defendants (almost) never stand trial before federal juries with American Indians in the jury box. Let us not forget ASIA Kevin Washburn’s Michigan Law Review article from a few years back that made that perfectly clear. He wrote:

Despite the normative principle of representativeness, Indians tend not to be well represented in federal juries in Indian country cases. Even in states with large Indian populations, Indians remain a very small fraction of the population. As a result, Indians would be expected to have minimal representation in the jury venire. However, the statistics indicate lower numbers than one would expect.

One thought on “On Federal Juries and American Indian Defendants

  1. Phil February 27, 2013 / 12:42 pm

    Part of the problem is that Indian defendants are disproportionately likely to be prosecuted in federal courts, as opposed to a local (tribal) tribunal. In state court, a defendant would normally be tried before a jury composed of a fair cross-section of that judicial district, probably the county or municipality. In federal court, a defendant would be tried before a fair cross-section of the federal judicial district, often (in states with large Indian country regions) 1/2 or all of the state’s population.

    A defendant in a local tribunal is far more likely to have a jury with local insight and perspective into the community context—not just racial and demographic factors, but local social norms—than a federal defendant. Naturally, any defendant in federal court faces this problem of a non-representative jury pool; however, the Indian defendant is just more likely to be in federal court in the first place.

    This insistance on prosecuting non-Indian reservation offenders in federal court perversely insures the jury has less local connection to the crime, less insight into the plague of violence on our reservations. Most justice should be local, but that is not the reality in Indian Country today.

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