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Indigenous communities in the United States are often left out of the conversation on mass incarceration, yet they are a population that is disproportionately affected by the issue.  In states where Native Americans comprise a relatively large part of the population, they are disproportionately represented in the prison system. In Minnesota, for example, Natives make up 1% of the state's population, yet they comprise 7.6% of the states prisoners. And while they are 15% of the population of Alaska, the prison population is more than double that. 

 

Compared to White American men, Native American men are four times likely to go to prison. This number is even higher for women, who are six times more likely to go to prison compared to their white counterparts. In 2010, there were a total of 37,854 American Indian/Alaskan Natives in adult correctional facilities, including 32,524 men and 5,132 women (and 198 who were 17 or younger). That is equivalent to a total incarceration rate of 1,291 per 100,000 people, more than double that of white Americans (510 per 100,000). In states with large Native populations, such as North Dakota, American Indian/Alaskan Native incarceration rates can be up to 7 times that of whites. The BJS annual report on jail inmates estimates 9,700 American Indian/Alaskan Native people – or 401 per 100,000 population – were held in local jails across the country as of late June, 2018. That’s almost twice the jail incarceration rates of both white and Hispanic people (187 and 185 per 100,000, respectively). Frustratingly, this data is also not reported by sex.

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One of the problems with spreading awareness about this issue is that there is not a lot of data available on Native incarceration rates. Limited state-level data is available from some state Departments of Corrections, like Alaska’s, which identifies Alaskan Native populations in its annual Offender Profile. However, many other states, even those with large Native populations like California and Texas, group these populations into an “other” category when reporting demographics. Data collection efforts in tribal communities face a number of problems that limit the data’s accuracy and comprehensiveness.

A lack of reciprocity between the U.S. and tribal justice systems has worsened the issues with data collection and sharing. According to the National Institute of Justice, issues such as difficulty in outreach, overlapping jurisdictions, and differences between tribal justice systems make the collection of data from these communities especially challenging. U.S. government policies and priorities also limit the data it collects and reports about Native populations. According to researchers, cultural and socioeconomic barriers lead to undercounting: More broadly, a “distrust of the U.S. government, a youth-heavy population, nontraditional addresses, low internet access, language and literacy barriers, weather and road access issues, and high rates of poverty and houselessness” create a deeply problematic undercounting of American Indian/Alaskan Native people. (A report by Rewire.

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The issue of mass incarceration is especially relevant to Native American youth. Since 44% are under the age of 25, young people are a critically important part of the population. However, they make up 70% of youth in federal prisons . They are also more likely to be transferred to the adult prison system. ​With a detention rate of 255 per 100,000 in 2015, Native youth are approximately three times more likely to be confined than white youth (83 per 100,000). In Indian country jails, approximately 6% of the confined populationwas 17 or younger in 2016

One factor that increases the rate of incarceration within the community is their unique legal standing. For example, if a one commits a crime that falls under the Major Crimes act (e.g. murder or burglary), they are prosecuted by federal courts. These courts tend to be harsher than state courts, especially for first-time offenders. In addition, sometimes criminals are punished twice - in both federal and tribal courts.

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Along with mass incarceration, police violence is common in Native communities. Depending on the year, either Native Americans or African Americans are the community most likely to be fatally shot by police. Between 1999 and 2014, .21 out of every 100,000 were killed by police, which is slightly less than African Americans (.25 out of 100,000). This is despite the fact that there are nine times as many African Americans. Overall, Native Americans make up 1% of the total United States population, but 2% of police killings.

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One possible solution is to reform the jurisdictions that they fall under. This would aim to do two things: increase tribal sovereignty, and reduce redundancy. An example of jurisdiction reform that happened recently was when Congress amended the Violence Against Women Act to allow tribal jurisdictions to punish domestic violence. Previously, if a Non-Native person committed an act of domestic violence against a Native person, they could not be punished by tribal courts. However, the amendment passed by Congress allowed tribal courts to prosecute these criminals.  In addition to Congress, the Supreme Court is another potential arena for jurisdiction reform. In the case of Nevada v. Hicks, the court decided that tribal courts did not have the jurisdiction to punish Non-Natives for crimes against Natives on reservations. If that case is overturned, tribal sovereignty will be made stronger.

 

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