Incarceration of Native Americans
and Private Prisons
AMERICAN
PRISONERS
http://patriciapauljd.com/tribal_law.aspx
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.....
Incarceration of Native Americans
and Private Prisons
By Frank Smith
Introduction
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
immensedisparity 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 RestorativeJustice.org 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."
Summary
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.
Endnotes
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:
http://www.yale.edu/ynhti/curriculum/units/1982/3/82.03.06.x.html
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
http://www.buildingblocksforyouth.org/illinois/
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.
http://www.motherjones.com/prisons/atlas.html. 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:
http://www.correct.state.ak.us
7. Foundation for National Progress,
http://www.motherjones.com/prisons/atlas.html
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):
http://www.buildingblocksforyouth.org/statebystate/
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:http://www.uaa.alaska.edu/just/reports/
press/press10.html
12. Common Dreams Newswire (2000) March
21:http://www.commondreams.org/pressreleases/may99/052199a.htm
13. Native Americans in South Dakota: An Erosion of
Confidence in the Justice System. http://www.usccr.gov/sdsac/ch2.htm
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 Times.com.
"Incarcerated Indians, Part I," 4-5,
http://www.okit.com/Justice4parts/justice1.html
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. http://www.correct.state.ak.us 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,"
http://www.okit.com/news/2001/dec/lakotarights.html
20. A Sociolinguistic Mismatch: Central Alaskan
Yup'iks and the Legal System, Phyllis Morrow,
http://www.uaa.alaska.edu/just/forum/f102su93/asocio.html
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: http://www.usccr.gov/sdsac/ch2.htm
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:
http://www.turtletrack.org/ManyVoices/Issue_20/Prison_1027.htm
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: http://sorrel.humboldt.edu/~jae1/emenLyng.html
27.
http://www.washingtonpost.com/wp-srv/national/longterm/supcourt/stories/062
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.
http://www.fcnetwork.org/reading/holt-miller/holtmillersum.html
32. Ruth Steinberger, "Incarcerated Indians," supra
note 14 at 4-5.
33. Guilfoyle. http://nativenet.uthscsa.edu/pipermail/nn-dialogue/2001-pril/000047.html
34.
http://www.uaa.alaska.edu/just/forum/f124wi96/a_village.html
and also "Elders Court works to save troubled
village teens," Anchorage Daily News, 26 December 2001.
35.
http://www.uaa.alaska.edu/just/reports/press/press02.html
36. Ada Pecos Melton, "Indigenous Justice systems
and Tribal Society," Tribal Court Clearinghouse: 1,
http://www.tribal-institute.org/articles/melton1.htm
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."
http://www.ojp.usdoj.gov/americannative/promise.pdf
40. Healing as Justice: The American Experience:
http://www.usask.ca/nativelaw/jah_yazzie.html
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:
http://www.tribal-institute.org/articles/vicenti1.html See also list of
tribal law articles at http://www.lawlink.nsw.gov.au/ajac.nsf/pages/usa
43. Native Americans in South Dakota: An Erosion of
Confidence in the Justice System: http://www.usccr.gov/sdsac/ch2.htm
Originally published in Capitalist Punishment: Prison Privatization and
Human Rights edited by Andrew Coyle et al., Clarity Press, Inc.,
Atlanta, http://www.claritypress.com
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
BOOKS I CAN
RECOMMEND!
"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