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Incarceration of Native Americans and Private Prisons         By Frank Smith


There are currently slightly over two million inmates in local, state and federal jails and prisons. Of these, some 1.6 percent are Native Americans and Hawaiian Natives; in Federal institutions, Native Americans constitute 2 percent of the population, since the U.S. government is involved in criminal justice enforcement on reservations. Because approximately 6 percent of all U.S. inmates are held in private prisons, the total number of Native Americans in these for-profit prisons is comparatively rather small. For that reason, this article presents a picture of the conditions in which Native Americans are held given that limited experience.

Historical Perspective

In order to achieve an informed understanding of the current situation with regard to Native Americans in prison, it is necessary to place it within a larger historical and sociological context. While most residents of the US have the notion their country was founded on the principles of justice and freedom, closer examination reveals that perception is not accurate, particularly in the case of Native Americans.1

The more progressive of our founding fathers whom we remember so fondly as protectors of these ideals include Thomas Paine and Thomas Jefferson. Paine consistently referred to Indians as “savages”, and used them as a negative comparative stereotype. Jefferson considered his contemporary Indians to be hindrances to colonial progress. The US only granted Natives citizenship in 1924, five years after women and 59 years after Black males were allowed to vote.

African Americans have undoubtedly been pervasively discriminated against in US history–their dehumanization was even embodied in the Constitution. Schoolchildren learn of the more egregious Supreme Court-approved violations of the rights of Blacks such as the Dred Scott decision or Plessy v. Feurgeson,2 and that the Civil War was fought in part over slavery. They may have read the Emancipation Proclamation and even the Thirteenth to Fifteenth Amendments to the Constitution. The sordid history in America of slave owning, in the north and south, of lynching, of Jim Crow, is discussed in most schools. The role of such historic figures as Frederick Douglas or Sojourner Truth is widely recognized. Martin Luther King Jr., is certainly better known than many mediocre presidents. Selma, Alabama, and Little Rock, Arkansas are familiar mileposts, as is Brown v. Board of Education. Students may even understand the meaning of racial profiling, of the immense disparity between sentencing for crack cocaine, more prevalent in inner-city neighborhoods, and powdered cocaine, more favored by wealthier uburbanites.

They may possibly be aware that a Black adolescent has perhaps a 50 times greater chance of being placed in an adult penal institution than a white youth who has been charged with exactly the same crime,3 and that perhaps one of three young Black men has been subjected to some criminal sanction, such as probation, parole, jail or prison.

Yet how many Americans, young or old, fully understand that this same disenfranchisement; this same disproportionate treatment by the criminal justice system, has affected Native Americans since the Articles of Confederation were signed? How many realize that broken treaties have been the order of the day for over two hundred years? Do they know that the early settlement of this nation involved pushing indigenous peoples into ever smaller, less habitable reservations?

How many school children are taught the cruel facts behind the genocidal removal of the inhabitants of the post-Revolutionary Southeast? There is hardly a Native American tribe that does not have a history of broken treaties and persecution. What this long, troubled relationship between European Americans and Natives constitutes is deliberate disregard for and discrimination against Native culture. Theft of lands, exiles, dispossessions, and a prevailing condemnatory and paternalistic attitude provide the background for the problems of Native Americans in prisons, both public and private, today. It particularly pervades the conditions of confinement of Indians in private prisons.

Criminal Justice and Injustice

There are four especially salient issues regarding Native Americans and the criminal justice system.

First is disproportionate incarceration: a much higher percentage of Native Americans are imprisoned, per capita, than any other ethnicity except African Americans.

Second is disrespect by the government for traditions, including an institutional “color-blindness” which often fails to recognize the effects of prejudice and often disregards cultural beliefs and practices.

Third: lack of access to spirituality and to home communities. Lastly, there is a higher percentage of alcohol-related behavior resulting in imprisonment. Let’s examine how each of these factors operates, particularly in the context of private prisons.

Disproportionate Incarceration

There are approximately 26,000 Native Americans in US jails and prisons who have been sent there at a rate 38 percent higher than the general population.

4 However, if Blacks, who constitute about half of all prisoners are excluded from the calculation, it is clear that this disproportion is far more egregious, when compared to non-Black ethnicities.

5 In Alaska, for instance, if Natives do not already form a plurality in prison, they soon will, as Native incarceration rates are rising rapidly while white and Hispanic rates have remained relatively flat, and the incarceration of Black people has actually dropped in recent years. Natives are only 16 percent of the general population in that state, though they make up 40 percent of adult inmates.

Between 1996 and 2000 in Alaska, the total of incarcerated white males rose just 6 percent, while the total number of Native males rose 23 percent. White female totals went up by 26 percent, but Native female inmates skyrocketed by 41 percent in just those four years.

6 An examination of state-by-state totals shows remarkable disproportion in ethnic representation. In Arizona, where many reservations are policed by tribal authorities and hearings held in tribal courts, the rate of Indian incarceration appears not significantly higher than non-Natives.

7 In other states, however, such is clearly not the case.

8 In South Dakota, where 10 percent of the state population is Indian, male and female Natives make up 23 percent and 35 percent respectively, of all inmates. In Wyoming, Indians make up 2 percent of the state population but 7 percent of prisoners. In Montana, though only 6.8 percent of residents are Native, they are 18.8 percent of men and 29.6 percent of women prisoners. Still more worrisome is the fact that in the last decade, the general prison population there less than doubled, but total numbers of Indian women went up from 17 to 81, an increase of 376 percent.

An extensive search of the literature revealed no information about why rates of incarceration for women are rising far faster than for men, nor why rates for Native women are vastly outpacing those for whites. Native Hawaiians constitute almost 40 percent of prisoners in and from that state.

Similar disparities prevail among juveniles.9 In Minnesota, 12 percent of the juvenile population is non-white, but they represent 46 percent of commitments to public facilities and 59 percent of secure placements. Minorities were 23 percent of juvenile arrests, but 70 percent of transfers to adult courts. In South Dakota, Native juvenile residential placements are at 27 percent. In Montana, 18 percent of all youthful inmates are Native. Alaska is at 36 percent and in 1997 (all) minority youth represented 47 percent of commitments to public facilities, and 57 percent of secure detention placements.

10 Nancy Schafer of the University of Alaska’s Justice Center reports, “It seems that Alaska Natives tend to accumulate extensive referral histories in rural areas for behaviors which would be ignored or dealt with informally by urban police. The history of prior referrals is a significant factor in adjudications for residential placement.”11 Alaska has reluctantly used private out-of-state “treatment” facilities for those youths who were not thought suitable for juvenile correctional institutions, but for whom no in-state alternative was thought to exist. It has had consistently poor outcomes involving the care and recidivism of such children.

Because the per diem rates in some private facilities for minors run over $250 per day, these children represent significant “profit centers” to the private providers. Nationwide, many of these operations have been extremely troubled to the point where children have died in their custody from abuse and neglect at the hands of poorly trained and paid staff. Prisons have been taken back from substandard private operators. Official oversight of the conditions of confinement is often minimal, as states’ prisoners are heavily subsidized by parents’ insurance and by Medicaid payments-sending states are less likely to assess their “bang for the buck,” and the geographic distance from the sending authority may be substantial.

This disproportionality has a powerful effect when one looks at the states that “transport” their prisoners. Montana, for instance, shipped large numbers of inmates to private prisons in Texas, and afterwards to Arizona after conditions in the Bobby Ross Group prison became explosive. Hawaii shipped its convicts to the same prison, but after racial altercations and poor treatment, the prisoners “voted with their matches” and twice burned down those Lone Star state facilities. After two deaths in the spring of 2001, a Hawaiian state audit team found that the CCA Florence prison essentially was being run by its inmates. Although the guards received far better wages than most private prison staff, due to prevailing wage standards in the community, they still lacked the experience and training to deal with problem prisoners. Chastened by these experiences, Hawaii has now removed most to Oklahoma, yet it is contemplating allowing another private operator to build on the Big Island near Hilo.

Institutional “Color-blindness”

In a US Senate debate over the Juvenile Justice Bill, the gulf between those who are empathetic to the inherent racism of the system and those who are not became crystal clear. Utah’s Senator Orrin Hatch, trying to eliminate a standing requirement for tabulation of the ethnic disparity in juvenile justice in a system he saw as “color blind,” is quoted in the Los Angeles Times as declaring, “I haven’t heard one shred of information that proves there is discrimination here.” Minnesota Senator Paul Wellstone responded, I cannot believe that I have heard on the floor of the Senate an argument that race is not the critical consideration. When we get to the question of which kids are arrested and which kids are not, you don’t think that has anything to do with race today in America? When we get to the question of sentencing, you don’t think that has anything to do with race? You are sleepwalking through history.

12 Black youth self-report committing violent crimes about 50 percent more than do whites. But they are four times more likely to be arrested, and seven times more likely to be locked up for violent crimes as their white counterparts. White youths seem to mature out of violent behavior in their early twenties. But if Black youth have similar employment levels, their rate of violence declines also. No similar study has been done with regard to Native American violent crime patterns; however this chapter’s analysis may shed some light on conditions that contribute to the high rate of Indian incarceration.

According to the 2000 US Commission on Civil Rights report on South Dakota there is “85 percent unemployment on the reservations compared to 2.7 percent unemployment for the non-Native population.” “On any given day,” it states, “an estimated one in 25 American Indians 18 years old and older is under the jurisdiction of the nation’s criminal justice system.”

13 This is 2.5 times higher than the rate for whites.

It is no wonder Natives have marginal faith in the criminal justice system, which they feel clearly discriminates against them. The Commission asked “why South Dakota incarcerates more than twice the number of criminals as its neighboring state and why Native Americans comprise 4 times the prison population compared to their percentage in the State’s total population.”

14 Racial profiling begins early, and suspects are much more likely to be charged. Ruth Steinberger reports 15 that of 41 incidents where Montana juveniles were pepper sprayed, “40 targeted Indian youth.” She details accounts of the decision to place Native inmates in administrative segregation (ad-seg). It appears that the due process rights of Natives are disregarded and commitments of Natives to ad-seg and maximum units are frequently whimsical. Steinberger writes: Statistics show that from initial contact with police to length of sentence, the differences disproportionately punish Native Americans, ultimately affecting families and communities as well. While the origins of the problems are complex, and it is impossible to highlight one particular fault, statistics reveal that the sum of those problems place Indians into confinement far earlier, and for less serious crimes than other Americans. Additionally, indications are that being denied parole opportunities may increase the sentences served by Indians even further.

16 She also quotes numerous anecdotal reports of whites being given slaps on the wrist for offenses against Indians, as well as nationwide figures for granting of parole that are similar to those found on the State of Alaska’s Department of Corrections website. There, it appears that Natives get parole at half the rate of whites, but have their paroles violated twice as often.17 A public institution usually has a parole or probation officer to facilitate an inmate’s transition back to “outside” life. Privates rarely provide such support. Robert Guilfoyle, a Seneca who is a tribal consultant states: “The median (age) of a prisoner in the US is 34, yet the median age of an American Indian prisoner is slightly under 20 years of age.”

18 Moreover, Scott Crichton of the Montana American Civil Liberties Union has said, “People who claim that racism is not an issue in Montana, have their heads in the clouds. Racism here is real and it is profound, it’s demonstrated in the prison system at each stage of the processing, from profiling and arrests and public defense to probation.”

19 While visibility in small towns is a factor in more frequent law enforcement referrals, Indians who are not “institutionalized” frequently tend to take blame for offenses on initial questioning, more so those who are less “assimilated” than those who are not. University of Alaska researcher Phyllis Morrow, who did an exhaustive study of Yup’ik in the state court system, found that both defendants and witnesses feel coerced, and expectations are quite different between them and whites.

20 This commonly results in acceptance of guilt, facilitating prosecution and eliminating plea bargaining chips for defendants. Carey Vicente, former chief judge of the Jicarilla Apache Tribe, wrote, “Among the Apaches the telling of truth is extremely important. . The implications of such values in current legal process have been that few criminal cases are contested.”

21 A former South Dakota correctional counselor who is Indian reported that his institution criticized him for starting the healing process with getting an inmate’s acceptance of guilt for crimes.

Of the dozens of individuals consulted for this article about the issues facing Native people with regard to the criminal justice system, perhaps a third independently mentioned substance abuse. Inadequate legal representation, was frequently mentioned, and most interestingly, the propensity for Natives not only to confess, but to supply considerable details of the crimes for which they were being questioned.

22 But private prisons, with their poorly trained, high turnover staff, fail to recognize the need for an environment that values and enhances the use of tradition in rehabilitation. In fact, the process of institutionalization, which proceeds from confinement which is disengaged from culture, interferes with the traditional function of honesty in the healing process.

Religious and Cultural Issues and Rehabilitation

Native American inmates often face significant cultural discrimination. Healing in their communities of origin requires utilizing traditional resources. Besides accepting responsibility for their crimes, offenders need to engage themselves in providing restitution to their victims, and in cleansing themselves of the behavior and attitudes that caused them to hurt others. This may involve receiving counsel from elders and spiritual guides, and participating in healing circles.

There often exist clashes between this culturally-based rehabilitative process and prison administration and rules. Although traditional healing is seen as a powerful deterrent to recidivism, Native inmates have been forbidden the use of sweat lodges and prisons have enforced grooming codes prohibiting long hair.

Inmates have been made to prove their Native ancestry in order to participate in cultural activities, though this is not required of those of other ethnicities. The possession or use of materials central to the religious process such as cedar, sage and sweetgrass may not be allowed. In Montana, a Christian choir was allowed into a correctional facility without being searched, yet guards are alleged to have strip-searched a medicine man who had come to provide counsel to inmates. Guards examined the contents of guides’ medicine pouches. Steinberger quotes Montana Lakota prisoner Manuel Redwoman as saying that the former prison chaplain claimed to be able to conduct traditional ceremonies, and tried to deny access to traditional items involved in worship. Redwoman remarked that while inmates were allowed to have four books on Christian or Muslim spirituality, only one was allowed on Native traditions.

23 Again, with private prisons, there is even less oversight concerning the conditions of confinement and adherence to law regarding prisoners’ rights than in the public sector, so expectations of such protections are minimized. In many states there are no statutes governing the conduct of such institutions.

Cultural restoration has shown real and necessary restorative qualities for Indian prisoners. The world outside their villages and reservations is often a very foreign place, as the Yup’ik study cited above shows. Most of white Americans can’t really understand and empathize with a people who have been dispossessed of their lands. Generations in the US and Canada were exiled without legitimate cause and punished for speaking their languages when they were forced to attend distant residential schools. Children who used to learn from their respected elders are now suffering the forced assimilation into the broader Western society. Television sets fill their dwellings with sitcoms, cartoons, exploding cars and game shows. Reservation and village Indians encounter a separate reality, a culture as foreign to them as if they were Laotian Hmong refugees, transplanted to America. This cultural intrusion dissolves the glue that holds their communities together.

The patent discrimination against inmates who desire to engage in traditional practices resulted in the 1993 passage of the Native American Free Exercise of Religion Act, authored by Hawaii Senator Daniel Inouye, a perennial champion of Indian issues. Six co-sponsors included Wellstone and Ben Nighthorse Campbell of Colorado, the only Native American Senator. The act ostensibly provided parity for Indian inmate religious observances, including access to spiritual leaders, materials used in ceremonies, food for religious diets, outdoor secure sweat lodges and teepees. It allowed inmates to wear long hair if the practice was part of their traditional beliefs. When signing the bill, President Clinton stated: The agenda for restoration of religious freedom in America will not be complete until traditional Native American religious practices have received the protection they deserve. My Administration has been and will continue to work actively with Native Americans and the Congress on legislation to address these concerns.

24 Though these are noble sentiments, it can be presumed they will be honored more in the breach than the observance. The initiative for the passage of the Act, ironically, was the US Supreme Court (5-4) decision in Oregon v. Smith 25 which allowed a state to discriminate against non-criminal Indian employees who had infrequently taken a small amount of peyote in a religious ceremony. The Court thus ignored its own precedent of the “compelling interest” standard.

Earlier Congressional action in the 1978 American Indian Religious Freedom Act was unfortunately deemed to be policy rather than law in the 1988 decision Lyng v. Northwest Indian Cemetery Association.26 Justice Blackmun, in dissent in Smith, commented that the state had never offered any evidence that peyote was harmful. The same “compelling interest” did not prohibit the Catholic Church’s use of sacramental wine in masses during Prohibition, of course. Anthropologists feel that the spiritual use of peyote may date back thousands of years and stylized representations of the cactus appear in traditional southwestern art. In 1997, the Supreme Court once again overturned an act of Congress in deciding the obscure zoning case of City of Boerne, Texas v. Flores, when it found the Religious Freedom Restoration Act to be unconstitutional on Fourteenth Amendment grounds.27 Dozens of liberal to conservative, religious and secular organizations had joined in an amicus brief, to no avail.

Compounding the denial of access to meaningful spiritual opportunities is the related issue of proximity to home communities. Ironically, Cornell Corrections made this argument in advocating for the return of Native inmates to Alaska from their competitor’s facility in Arizona. Natives are closely bound to their communities of origin. To achieve their rehabilitation potential they need to maintain those connections to their extended families and support systems. Far too often they are incarcerated hundreds, if not thousands of miles from their homes and families. With the rise of private prisons, this situation has become particularly exacerbated as multinational corporations locate in the areas with the lowest taxes and wages. Prisoners of all ethnicities have been transported up to thousands of miles, such as Native Hawaiian prisoners who are now being held in Oklahoma after disastrous experiences in Arizona and Texas. Washington, DC prisoners have been held in another private prison in Florence also, as were more than 800 Alaskan prisoners, including over 300 Alaska Natives.28 Dozens of these Natives have communicated their intense displeasure with their treatment in for-profit prisons. Inmate Harold Kankanton, the first chief of the Wildwood Prison Native Culture Club in Kenai, Alaska, having served five years in the Arizona private prison, stated, “All they do is warehouse you. They don’t have a clue.” Other Native inmates nodded in agreement. He remarked about private prison corporations, “They’re using us as a pawn.”

29 During a recent attempt by Cornell Corrections to build a private prison adjacent to Wildwood, far from their Alaskan families’ homes, many inmates wrote with specific complaints. They counterbalanced representations by a local tribal association that tried to get financially involved in the “Rent-A-Pen” business. Inmate Council President Michael Tebo listed a long series of complaints about treatment of himself and his fellow inmates in the care of the private companies and questioned the sincerity of the financially shaky local Native Corporation since it would have profited handsomely if the proposed prison were built on its land.30 An earlier proposed venture with another Alaska Native corporation ended in disaster, partly because the remote prison site was relatively inaccessible to most families of inmates.
A private prison inmate’s family member from Ketchikan, in Southeast Alaska, received documents that had been smuggled out of one of the Florence, Arizona Correctional Corporation of America prisons. They detailed outrageous punishments of Natives seeking respect for and observance of cultural rites and traditions.

After a Cornell private prison was proposed for his own town, he turned them over to the local newspaper. Postings to the Native American Prisoner Support website by and about Alaska prisoners being held in CCA echoed similar complaints. Indeed, since Alaskan “bush” natives often rely on four wheelers, boats and snow machines for home transportation, they were usually unable to visit a prison only 11 miles from Anchorage. There was no useful public transportation to the prison. Even though family members sometimes got to Anchorage for medical treatments and conferences, they often did not possess driver’s licenses, insurance and credit cards necessary to rent a vehicle to visit their loved ones. In the lower 48, things are much the same: in South Dakota, Belva Black Lance noted that the prison was 350 miles from prisoners’ homes. She said, “What this problem is doing is destroying our families. Children are the ones who lose the most.”

32 A study of California inmates three decades ago showed that inmates who received visits from three or more people in the last three months of their incarceration recidivated at one-sixth the rate of those who received no visits.31 But incarceration in distant state, private and federal penitentiaries ruptures the bonds particularly needed to prevent the return of Native inmates to prison. More significantly, the states most heavily reliant upon private prisons to fill the gap between prison population and available in-state bed space are those transporting convicts the farthest, such as Alaska and Hawaii. Montana has brought its prisoners home by allowing the construction of a private prison within its borders. Wisconsin has just recently initiated attempts to return its prisoners, who are also disproportionately Native, back within its borders, by buying an empty, speculative prison.

Native communities have tended to seek and discover solutions for alcohol related problems in what, in contemporary times, tend to be fairly unique ways. These interventions find little respect within a for-profit prison environment more interested in cutting expenses than in outcomes.

Native Justice Traditions

Traditionally, justice in the Native community has been of a reconciliatory rather than a retributive nature. Admissions of guilt are sought in order to resolve the offense, for the sake of the community, offenders and victims alike. If a tribal member’s behavior was intolerable to the community of origin, and elder counseling, community shaming or other methods were not able to control the difficulty, exile was used as a last resort, and “meant severe hardship”.

33 In Alaska, “blue ticketing” was the process of forcing an offender to leave his village.

34 But this was a last resort, the worst of punishments in a subsistence and cooperative society, and incarceration was a wholly foreign concept.

In 1996, an Alaska Justice Center survey reported: “Many of the villages surveyed were found to have established . their own policies and methods for dealing with most crime and social control problems in the communities. Despite the importance of these extralegal local practices to villages, in general they seem to go unrecognized or ignored by justice system employees who are assigned to serve communities. Most respondents indicated a preference for having crime and social control problems handled by people in the community with support from the troopers. .Eight times as many people identified tribal courts as identified state courts as the most effective group to stop drug and alcohol abuse.”

35 Ada Pecos Melton, former Director of the American Indian and Native Justice Programs at the US Department of Justice, expressed her concept of Eurocentric justice: “The American paradigm” is based on a retributive philosophy that is hierarchical, adversarial, punitive and guided by codified laws and written rules, procedures and guidelines. (D)decision-making (is) limited to a few. .It holds that because the victim has suffered, the criminal should as well. Punishment is used to appease the victim, to satisfy society’s desire for revenge.”

36 By contrast, she writes, “The indigenous paradigm is based on a holistic philosophy and a world view of the aboriginal inhabitants of North America. These systems are guided by the unwritten customary laws, traditions, and practices learned primarily by example and through the oral teachings of tribal elders. The holistic philosophy is a circle of justice that connects everyone involved with a problem or conflict on a continuum, with everyone focused on the same center. The continuum represents the entire process, from disclosure of problems, to discussion and resolution, to making amends and restoring relationships.”

37 The website chronicles the history of “Circles,” and their adaptation to the criminal justice system in the last two decades. Their initial use in 1991 was by “Judge Barry Stuart of the [Canadian] Yukon Territorial Court, (who) introduced the sentencing circle as a means of sharing the justice process with the community.” A grass roots effort to find solutions to alcohol problems in the Alkali Lake community guided a similar process in the Hollow Water First Nations Community in 1984-86. “In the safety of those circles, many began to disclose experiences with sexual abuse. This led to the development of healing circles as a way of dealing with the harm created by the offender, of healing the victim and of restoring the community.” Circles have been developed most extensively in the Yukon, Saskatchewan, and Manitoba. In the US, Navajo peacemaking courts have also used circles. The initial use of circles in mainstream criminal justice was in 1996 in Minnesota. Everyone present, the victim, the victim’s family, the offender’s family, and community representatives are given a voice in the proceedings. Participation in the circle is voluntary. The victim must agree to attend without any form of coercion. The offender accepts his/her guilt in the matter and agrees to be referred to the circle.

Especially for the native communities, it is important for the offender to have deep roots in the community. “After the healing circles, a sentencing circle determines the kind of response expected of the offender, although it may also contain commitments by the justice, community, and family members involved.”

Referring to the healing circles process of the Mille Lacs Circle Sentencing Project, Kay Pranis of the Minnesota Department of Corrections observes, “Circles call people to more conscious awareness of our connections, our shared fate, our humanity, our spirituality. Awareness of connections is the foundation of authentic community.”

38 It is simply inconceivable that private prison staff could facilitate such an intensely respectful process.

Treatment involving both traditional indigenous interventions and those accepted in more conventional substance abuse programs are integrated into the community healing process. One program, named for Alaska’s first tribal judge, the late Gunaanasti Bill Brady, a Tlingit from Sitka, Alaska, is described as, “.a five week intensive residential program for adults with alcohol and/or drug problems. A holistic model that combines biological, psychological, social and internal spiritual elements is used for treatment, allowing the Center to address other major problems clients might have such as depression, low self esteem, victimization issues and family problems.”

39 Alaska’s Department of Juvenile Justice funded a pilot project involving miscreant juveniles appearing before councils of respected elders who decided on non-institutional resolution of offenses. This approach appears to be appropriate throughout North America. For instance, Navajo Nation Chief Justice Robert Yazzie wrote, “Navajo wise persons are called naat’ aanii. Others call them an elder. They help plan decisions through guidance, but they don’t make the decisions.” Elsewhere he states, “Indians don’t store their laws in books; they keep it in their minds and hearts. Everyone knows the law” and “Navajos believe that is wrong to use coercion on each other, so the legal process requires consensus.”

40 American Indian traditional responses to crime have found advocates from as far away as Belgium and Great Britain. These interventions require a bond formed with a proximate support system outside the walls, which is not found in the case of private institutions. Andrew Coyle, a former governor (warden) of a British prison, advocates that such methods include:

·  Creating more awareness amongst convicted prisoners of the impact of crime on victims and programs of direct mediation between victims and offenders.
·         Remodeling the way disputes are settled within the prison and incorporating restorative principles into grievance and disciplinary procedures.
·         Building a new relationship with the community outside the prison to emphasize the need for prisoners to be reconciled with the wider society and received back into it.

41 Governmental and ad hoc Resistance to Native Community Initiatives.
Unfortunately, though Congress and the Department of Justice have encouraged the development of community empowerment, alternatives to incarceration, and tribal courts, the funding to ensure their viability has been largely limited to rhetoric. Though many grants facilitating measures that might decelerate the swelling of the Native American incarcerated population have been approved, obligations of the government to support tribal courts themselves have been wanting. Judge Vicente writes, “Congress passed the Indian Tribal Justice Act. in 1993,” but “[a]lthough it authorized up to $58 million to reinforce the funding of tribal courts to this day [in 1995] it remains unimplemented and unfunded.”

42 He points out that the 1953 Public Law 280 (Ch. 505, 67 Stat. 588-90) has caused tribal authority to suffer except in limited instances and the Indian Reorganization Act of 1934 (the Wheeler-Howard Act) overlaid structures that involved corporate or western organizations and frequently damaged traditional institutions.

Because of a Native cultural ethic which emphasizes cooperation, and which has antipathy for interpersonal confrontation, it has been difficult for indigenous communities like Barrow, Alaska, to mount resistance to these sorts of injustices and expressions of the dominance of majority culture. In the South Dakota Civil Rights Commission hearings, Elaine Holy Eagle said, “Native Americans, particularly ‘full bloods,’ are taught to respect authority, and out of this respect, they do not stand up for their rights.”

43 For this reason, Natives are particularly vulnerable to exploitation in a unfamiliar environment such as a private prison in a distant state.

Judge Vicenti explains the dichotomy: “America, in its attempts to correct what it perceives as a rampant injustice in Indian America, creates a greater injustice by forcing its culture upon Indian peoples.”


Native Americans have had a long and dismal history of negative interaction with the Euro-American legal system. The oppression that they have collectively experienced, the imposition upon them of an alien ideology, the clash of cultures, and their product, an intrinsic distrust of that criminal justice process, have helped cause disproportionate numbers of Indians to be incarcerated. If this process is to be reversed, respect for different traditions must be fostered. Traditional means of healing community trauma and discord need to be utilized and sovereign tribal powers need to be expanded. Most importantly, prisoners should be kept as close as possible to their families and support systems, and given access to those aspects of their culture that help keep them from endlessly recycling through the criminal justice system. Shipping them wholesale to faraway private penitentiaries that have no vested interest in rehabilitation and eventual return to inmates’ home communities is a prescription for disaster.


1. The terms “Indian,” “Native American,” “indigenous, and “First Nation” in this chapter will be used interchangeably. It will not differentiate between Alaskan Indians and Aleuts. Native Hawaiians will be included; their situation is much the same as with Indians and Native Alaskans, and other US and Canadian indigenous peoples.

2. Dred Scott 60 US 393, 15L ed 691(1856) held that even if a slave was transported to a state or territory where slavery was illegal, it did not affect the slaveholder’s property rights in the slave., 163 US 536 (1896) gave an imprimatur to the “separate but equal” doctrine, legitimizing segregation Plessy v. Ferguson, 163 U.S. 537 (1896) with a veneer of supposed equality of services. Brown v. Board of Education 347 US 483 (1954) finally forced desegregation by striking down Plessy as it applied to schools.

A good study guide may be found at:

3. Jason Ziedenberg, et al, Building Blocks for Youth: “Drugs and Disparity: The Racial Impact of Illinois’ Practice of Transferring Young Drug Offenders to Adult Court.” April 2001
4. The Foundation for National Progress website posts current helpful charts showing incarceration rates for Black, white and other ethnicities on a state-by-state basis, obtained from Department of Justice and individual state statistics. Also see Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, “American Indians and Crime.” Greenfield & Smith, Feb. ’99, NCJ 173386.

5. It is also difficult to calculate the precise amount of the differential incarceration. Since many Natives are held in federal prisons, they may not be properly counted as coming from their sentencing state. This could also reduce the amount of the disparity that is found in state prison populations. Additionally, Hispanics are often inconsistently counted as whites, and Indians as Hispanics – the practice varying from state to state. If Blacks are eliminated from the prison population, and they constitute half of all prisoners, then the 26,000 Native Americans of the remaining million prisoners are 2.6% of the non- Black prisoners, though only .9% of U.S. population. U.S. Census Bureau.

6. From the Alaska Dept. of Corrections website:

7. Foundation for National Progress,

8. Id.

9. The following numbers do not reflect a higher rate of Native adolescent referrals to adult courts, beyond the juvenile system, so the situation is likely worse than it appears to be.

10. Office of Juvenile Justice and Delinquency Prevention: Census of Juveniles in Residential Placement Databook, Race/Ethnicity by State, (1997):

11. N.E Shafer. A Comparison by Race of Juvenile referrals in Alaska: Phase II Report, Anchorage Justice Center, University of Alaska Anchorage, (1998) May: press/press10.html

12. Common Dreams Newswire (2000) March


13. Native Americans in South Dakota: An Erosion of Confidence in the Justice System.

14. Rural Ethnic Institute, Western Dakota’s Pilot Project of the Evolving Roles of Tribal People in Nation States, (1997) December: 28.

15. Ruth Steinberger, Native “Incarcerated Indians, Part I,” 4-5,

This four-part series speaks to the problem far more clearly than thousands of pages of government and academic reports. The reporter accurately describes the process that tips the balance of the scales of justice against Indians at every stage. From the initial decision to question suspects, to custody level decisions behind the walls and wires, Indians fare far more poorly than non-Native peers.

16. Id., 4-5.

17. An Eskimo, for instance, can go back to prison simply as a result of a urinalysis containing a tiny trace of marijuana, though most of the people in his or her village smoke it, and such smoking is not associated with criminal conduct. Indeed, it was legal for any Alaskan to smoke marijuana until 1991.

18. Ruth Steinberger, “Incarcerated Indians,” supra note 14 at 4-5.

19. Ruth Steinberger, “Lakota Man’s rights Denied in State Penitentiary,”

20. A Sociolinguistic Mismatch: Central Alaskan Yup’iks and the Legal System, Phyllis Morrow,

See also: Yup’ik Eskimo Agents and American Legal Agencies: Perspectives on Compliance and Resistance, Phyllis Morrow, University of Alaska, Fairbanks. J Roy. Antrop. Inst. (N.S.) 2, 405-423.

21. Native Americans in South Dakota: An Erosion of Confidence in the Justice System:

22. People who were consulted included researchers, judges, attorneys, former prisoners, police and village public safety officers, probation officers and former correctional officers. Most of these persons were either Native themselves, or were empathetic to and had worked closely with Native communities. Most people also identified that Miranda warnings – notifications of the right to refuse to incriminate oneself – have minimal useful effect in Native communities; extension of civil liberties there is a mixed bag.

23. Ruth Steinberger, “Administrative Segregation common for Indian Prisoners in Montana,” We have many voices:

24. White House press conference, April 29, 1994.

25. 494 US 872 (1990)

26. At issue in Lyng was the construction of a paved two lane road, meant to facilitate access for timber harvesting, in proximity to a traditional California North Coast Indian sacred site. An excellent explanation of these Supreme Court cases, including Lyng, is at:

27. 697a.htm

28. Some of these prisoners are from the arctic, a polar opposite climate. Many never adapt to the baking desert.

29. Tom Kizzia, “KNA says rehabilitation utmost in prison pitch: inmates scoff,” Anchorage Daily News 26 September 2001.

30. From an undated letter to the Kenai Borough Assembly in the summer of 2001.

31. Norman Holt, Donald Miller, California Department of Corrections. January, 1972. Report #46: Explorations in Inmate-Family Relationships.

32. Ruth Steinberger, “Incarcerated Indians,” supra note 14 at 4-5.
33. Guilfoyle.

34.  and also “Elders Court works to save troubled village teens,” Anchorage Daily News, 26 December 2001.

36. Ada Pecos Melton, “Indigenous Justice systems and Tribal Society,” Tribal Court Clearinghouse: 1,

37. Id., 2.

38. The exemplary protocol developed by Hollow Water, an Anishnaabe community, is remarkably thoughtful and professional, and mandates long-term involvement in the treatment process. Organizational staff understands that the healing process is necessarily lodged within a wide circle in the community and there is no magical “quick fix,” especially in cases of sexual abuse. At the core of the process are the traditional cycles of ceremonies.
It also recognizes that women are leading the healing movement.

39. Its umbrella agency, Southeast Alaska Regional Health Consortium (SAHRC), also sponsors Raven’s Way, a program for juveniles. SARHC notes, “[i]n 1998, of all court referrals of Native youth in the state, 55 percent were for the offense of possession and/or consumption of alcohol.”

40. Healing as Justice: The American Experience:

41. Restorative Justice in the Prison Setting: Andrew Coyle, as presented to a conference of the International Prison Chaplains Association, Driebergen, The Netherlands, 13 May 2001.

42. From Tribal Court Clearinghouse: The Reemergence of Tribal Society and Traditional Justice Systems: See also list of tribal law articles at

43. Native Americans in South Dakota: An Erosion of Confidence in the Justice System: Originally published in Capitalist Punishment: Prison Privatization and Human Rights edited by Andrew Coyle et al., Clarity Press, Inc., Atlanta,

Native Incarceration rates increase

Although the Native Americans are the smallest segment of the population, Native Americans have the second largest state prison incarceration rate in the nation, according to a recent review of prison statistics. The review, conducted by the Foundation for National Progress, found that 709 per 100,000 American Indians and Alaska Natives were incarcerated in state prisons in 2000. Overall, Native Americans are 1 percent of the state prison population, a rate which hasn’t increased significantly nationwide over the past two decades. In federal facilities, Natives were 2 percent of the population. But depending on the state, Native Americans disproportionately incarcerated. In Montana, for instance, 16 percent of prisoners were Native, compared to just 6 percent of the state population. In North Dakota, 19 percent of prisoners were American Indian and Alaska Native in a state where just 5 percent are Native. Wyoming Indians made up 2 percent of the state population and 7 percent of the prison. The rate was comparable to Minnesota, where Indians were 1 percent of the general population and 7 percent of the prison, and Nebraska — 1 percent and 5 percent, respectively. South Dakota had the highest percentage in the Plains. Some 21 percent of state prisoners were Native, compared to just 8 percent of the state. The only other state which had a large disparity was Alaska, which has the largest percentage of Native Americans in the entire country. A full 37 percent of the state prison population was Native in 2000, compared to 16 percent of the general population. But other states with significant Indian populations did not necessarily experience the same phenomenon. The percentage of Natives in state prisons in California, New Mexico, Oklahoma, and Arizona, for instance, were not extra-ordinarily high. In 1980, there were 145 per 100,000 Indians in California’s prisons, a rate which jumped to 767 per 100,000 in 2000. Such large jumps can be attributed, in part, to increases in the general American Indian and Alaska Native population. The review was based on statistics provided by states, the Department of Justice, and the US Census Bureau. Research was conducted by the Justice Policy Institute, a program of the Center on Juvenile and Criminal Justice, a non-profit organization whose mission is to reduce the use of incarceration as a solution to societal ills. The Department of Justice last year released a study of jails in Indian Country; they were overcrowded and under funded……

IMPORTANT ADDRESS: Len Foster, National Coordinator, National Native American Prisoners, Rights Advocacy Coalition, P.O. Drawer 709, Window Rock AZ 86515 USA

“Indians in Prison” Incarcerated Native Americans in Nebraska By Elizabeth S. Grobsmith.  The subject of Indians in prison is of great importance not only because of the increasing Native American population in prisons (and the consequences for Indian life) but because that population is so disproportionately high.
“Prison Writings: My Life Is My Sundance”  By Leonard Peltier. Memoir of America’s most controversial political prisoner
“The Trial of Leonard Peltier” By Jim Messerschmidt Forward by William Kunstler. Well-documented and researched study. Leonard Peltier was convicted solely because of his race and political beliefs.
“In the Spirit of Crazy Horse” By Peter Matthiessen solidly documented account of the U.S. government’s renewed assault upon American Indians that began in the 1970’s
“The American Indian In the White Man’s Prisons,” A collective statement of Native American prisoners, former prisoners, and spiritual leaders, edited by Little Rock Reed. A comprehensive documentation of human rights abuses and a spirit of resistance. Standing Deer Wilson describes how he helped federal authorities plan to assassinate Leonard Peltier. Ojibway elder Art Solomon offers a poetic spiritual vision for his people. Reed documents his work fighting for his spiritual rights as a Ohio state prisoner. (Reed, Uncompromising Books [P.O. Box 1760, Taos, New Mexico, 87571], 1993.)
“Behind Bars: Surviving Prison” By Jeffrey Ian Ross, Stephen C. Richards
Two criminologists have come up with a guidebook on surviving the criminal justice system  “You Got Nothing Coming: Notes from a Prison Fish”  By Jimmy Lerner

Jimmy A. Lerner’s memoir of his first year (of a possible 12) as an inmate in a Nevada state prison

The Hot House: Life Inside Leavenworth Prison By Pete Earley Leavenworth Prison, nicknamed “the hot house” because of its lack of ventilation, has the most dangerous inmates and the most repressive conditions in the country. Journalist Earley spent two years interviewing the inmates and employees of Leavenworth Prison.
© Copyright Jessie Metz

Note from Shayne del Cohen-Journal #1016 1/30/08  “I’m really happy that I got the permission to publish the following article!  This is very interesting, please take some time to read it…..”