Dan Lewerenz & Kimberly Schweitzer
Volume 77, Issue 5, 1039-1096
For 140 years, the Major Crimes Act (“MCA”) has authorized federal criminal jurisdiction over certain enumerated crimes committed by Indians in Indian country. Although Congress specifically said that the MCA applies to crimes committed by an “Indian”—and defined “Indian” in literally dozens of other contexts—Congress has never said who is an “Indian” for purposes of the MCA. In the absence of such a definition, federal courts have developed standards to determine Indian status for purposes of the MCA. Although there is some variation among the Circuit Courts, generally speaking the prosecution must prove that the defendant has some degree of Indian blood and is recognized as an Indian by the federal government or an Indian Tribe. But the courts have also decided that Indian status is a factual (not a legal) question, and therefore have left the determination of Indian status to juries.
The authors are the first to explore how jurors make such determinations. This Article situates their research in the legal scholarship. Initially, study participants assessed photos and names of Indians to determine their stereotypicality. We then presented mock jurors with a summary of evidence presented at a mock MCA trial, with the defendant’s photo and name manipulated (high-stereotype, low-stereotype, or not presented), to whether stereotypes would influence mock jurors’ determinations of Indian status and/or guilt. Although the authors hypothesized that mock jurors presented with a high-stereotype photo and/or name would be more likely (compared with low-stereotype or null conditions) to find that the defendant is an Indian, such was not the result. However, the study yielded two interesting and unexpected results: (1) Exposing mock jurors to certain stereotypes increased the likelihood that a mock juror would find that the defendant had committed the underlying crime (simple assault); and (2) a noticeable percentage of mock jurors who said that the defendant was not an Indian nevertheless found the defendant guilty, directly contradicting the jury instructions. This Article raises substantial questions about Congress’s choice not to define “Indian” for purposes of the MCA, and about whether jurors should decide who is an “Indian” for purposes of federal criminal jurisdiction in Indian country.