Mass Incarceration Since 1492: Native American Encounters With Criminal Injustice

These are actual tiny child handcuffs used by the US government to restrain captured Native American children and drag them away from their families to send them to boarding schools where their identities, cultures and their rights to speak their Native languages were forcefully stripped away from them. (Photo: US government)

The recent right-wing militia occupation of federal land in Oregon once again reminds us that we actually live in what historian Roxanne Dunbar-Ortiz refers to as the US “settler colonial state.” Amazingly, Ammon Bundy and his clan took over this land with the claim that they were the rightful owners. With typical settler arrogance, they neglected the historical truth – that the Indigenous people of the Northern Paiute nation were there long before a single imperialist ship set sail from Europe. As journalist Simon Moya-Smith has pointed out “for Native America being overlooked is nothing new. Our voices are seldom in the mainstream, our issues disregarded … this country has yet to recognize our humanity.”

Critical accounts of police abuse and mass incarceration often suffer from a similar syndrome, albeit with much better intentions. They overlook the particulars of structural violence that have been visited upon Native peoples for many centuries, and how this violence relates to but also differs from the experience of Black people. Adding the Native American dimension to framing the analysis of the criminal legal system adds new insights and offers some important lessons for alternatives.

Police Violence

Some forms of this violence are tragically familiar. Native activists too can call out the names of those who have died at the hands of police in recent years: Rexdale Henry, Mah-hi-vist Goodblanket, Allen Locke, Paul Castaway and Sarah Lee Circle Bear.

Some like Henry and Circle Bear passed away in police custody under suspicious circumstances. Others such as Locke and Goodblanket perished in a hail of bullets. Such deaths are not a rarity in Native American communities. Data from the Centers for Disease Control and Prevention for 1999 to 2013 show per capita Native American deaths in custody as roughly equal to those of Black people and nearly double the rates for “Hispanics and almost three times the rates for whites. “

While most of these Native deaths have attracted little attention, the case of Rexdale Henry (Choctaw), who died a day after Sandra Bland, has drawn media coverage beyond Indigenous circles. Like Bland, Henry was taken into police custody for spurious reasons – outstanding fines which family members allege he had paid off. His death contains a further irony. Neshoba County, Mississippi, where Henry died, was the place where white supremacists murdered three civil rights workers, James Chaney, Michael Schwerner and Andrew Goodman, in 1964; it is also the land of the Mississippi Band of Choctaw Indians.

Professor Paula Johnson, co-director of the Cold Case Justice Initiative at Syracuse University College of Law, has worked with Mississippi civil rights activists to investigate the Henry case. She told Truthout, “No matter who is responsible for this, there is gross negligence on the part of the state.” Henry’s cellmate, Justin Schlegel, has been charged in the case but many questions remain unanswered.

Beyond Police Violence

On one level, these deaths of Native Americans do mirror the police killings of Black people over the past two years. Incarceration rates tell a similar story. Nationally, according to the Prison Policy Initiative, Native Americans are incarcerated at nearly twice the rate of white people and slightly more often than Latinos though with less than half the frequency of Black people.

From these figures we might conclude the experience of Native Americans reflects yet another battlefront of a racialized war on drugs and the militarization of urban police. However, many Native activists and analysts reject an emphasis on number-crunching and view this situation through a different lens.

Not “Race” but Genocidal Colonialism

Nick Estes (Lakota), cofounder of The Red Nation, told Truthout that in discussing Native rights, “race is the wrong term … what we need to talk about is colonialism.” Dunbar-Ortiz, author of the best-selling An Indigenous Peoples’ History of the United States, concurs. Furthermore, she emphasized to Truthout that the US settler colonial state contained a genocidal component, a history of “constantly trying to think of ways to make Native peoples disappear.” However, the failure to exterminate the Native population has not extinguished genocidal efforts by the US state nor eliminated Native resistance. Rather, the forms of genocidal initiatives have changed.

In the political arena, a key focus of the colonial state has been undermining Native sovereignty. This sovereignty issue surfaces in the criminal legal realm in ways that are unique to Native American history. One of the most crucial relates to legal jurisdiction. As Luana Ross (Confederated Salish and Kootenai Tribes), professor of gender, women and sexuality studies at the University of Washington, puts it in her book Inventing the Savage, “Indian reservations are the only places in the United States where the criminality of an act relies exclusively on the race of the offender and victim.”

“Tribal courts” stand at the center of this dynamic. These courts originated with the formation of the Bureau of Indian Affairs within the War Department in 1824. Up to that time, Native Americans had their own justice system outside the reach of US authorities. Pre-1824 tribal courts embodied a restorative approach that greatly differed from the punitive, adversarial system of the United States. Throughout the 19th and 20th centuries, a host of laws and court decisions gradually eroded the judicial power of those Native courts. This erosion took two forms. First, tribal authorities’ power to prosecute has ultimately been limited to misdemeanors. Felony cases are referred to federal jurisdiction. Second, the 1978 Supreme Court decision in Oliphant v. Suquamish Indian Tribe eliminated any tribal authority in criminal or civil matters where a non-Native person commits a crime on Native American land.

Such arrangements draw historical inspiration from the colonialist doctrine of discovery. First articulated by a Catholic pope in the 15th century, this edict granted European discoverers automatic ownership over any land they encountered that was occupied by “pagans.” Over the years, US Supreme Court justices, from John Marshall in 1823 to William Rehnquist in 1978, have repeatedly invoked the doctrine of discovery in justifying their decisions to restrict the powers of Native courts, especially in regard to prosecution of non-Native people.

Impact of Jurisdictional Issues

The implications of this have been devastating. The referral of Native people charged with felonies on reservations to federal jurisdiction typically means much longer sentences than they would face under state or tribal authority. Former prosecutor for the Pine Ridge Reservation, Heather Dawn Thompson has called this system “absolutely an inequity.” A 2003 federal commission on the issue recommended reform but to date no major changes have taken place. A similar body, the Tribal Issues Advisory Group, was formed by the US Sentencing Commission in 2014 to address these issues further.

To make matters worse, the Oliphant decision created a license for white people and other non-Native people to commit crimes on reservations. While in theory, such offenses should be subject to federal prosecution, according to tribal rights lawyer, Tara Houska, (Couchiching First Nation) the Feds rarely pick up such cases. Statistics bear her out. In a study covering 2005 to 2009, federal prosecutors declined to pursue 52 percent of the violent cases referred to them by tribal authorities and 67 percent of sexual abuse cases. In 2011 alone, federal authorities declined to prosecute 65 percent of rape charges. Eighty-six percent of these involved non-Native men. The victimization rate for sexual assaults against Native women is 2.5 times the national average.

Native activists have pushed back on these jurisdictional issues and gained some victories. The 2013 reauthorization of the Violence Against Women Act granted the right for tribal authorities to prosecute domestic violence cases against non-Native reservation residents or non-Native people married to a Native person. But tribal courts still cannot prosecute rape, other sexual assaults or domestic violence cases against non-Native people who don’t live on a reservation or aren’t married to a Native American.

“Kill the Indian and Save the Man”

While the legal frameworks applied to Native peoples are an important component of the genocidal agenda, historically the criminalization of Native culture has been of equal significance. Bans on traditional dancing, drumming, speaking of Native languages and wearing long hair fell under this rubric. The process deepened through the expansion of what Estes refers to as “institutions of containment and control,” especially residential schools. These schools began in the aftermath of the Civil War and operated for more than a century. Gen. Richard Henry Pratt was the founder of the first and perhaps most famous of these institutions, the Carlisle Indian Industrial School in Carlisle, Pennsylvania. Pratt aimed to achieve “assimilation through immersion” largely by creating a regime of military-style discipline to inculcate European culture. Pratt once proclaimed, “A great general has said that the only good Indian is a dead one. In a sense, I agree with the sentiment, but only in this: that all the Indian there is in the race should be dead. Kill the Indian in him, and save the man.”

John Riley, another Indian school superintendent, added a financial rationalization to Pratt’s genocidal dictum: “Only by complete isolation of the Indian child from his savage antecedents can he be satisfactorily educated, and the extra expense attendant thereon is more than compensated by the thoroughness of the work.” While such rhetoric may seem like a nightmare from a distant past, as Tara Houska told Truthout, “the legacy still carries on … my own grandmother went to boarding school … a lot of people are still trying to get over the forced assimilation and boarding school era.”

In the contemporary context, the legacy of criminalizing Native culture goes hand in hand with the criminalization of poverty. According to the Centers for Disease Control and Prevention, in 2014, 28.3 percent of all Native peoples lived in poverty, the highest percentage of any racial or ethnic group. In the era of mass incarceration, criminalization of poverty has meant disproportionate policing of the urban areas where more than three-quarters of all Native peoples live. Rather than carrying out a “conventional” war on drugs, this policing has maintained a special focus on violations relating to alcohol abuse. According to Dunbar-Ortiz, “almost every crime related to jails” is connected to alcohol.

For Dunbar-Ortiz, alcohol abuse is not about addiction. She categorizes alcohol as a “colonial weapon” that has been “used all over the world.” At least one of the framers of the US Constitution agreed with Dunbar-Oritz’s views on the strategic role of alcohol. In his renowned autobiography, Benjamin Franklin suggested: “If it be the design of Providence to extirpate these savages in order to make room for cultivators of the earth, it seems not improbable that rum might be the appointed means. It has already annihilated all the tribes who formerly inhabited the sea-coast.” Dunbar-Ortiz relates alcohol abuse to the trauma of land expropriation, noting that land remains Native peoples “rootedness, their survival … the one strand that allows them to continue as peoples.”

While disproportionate policing of alcohol-related events dominates the urban Native landscape, the reservations show yet another reality. Although the police have been the arm of the colonial state in urban communities, Dunbar-Ortiz contends that reservations and other Native-held land have always fallen under the orbit of the military. On the one hand, this has meant that on a day-to-day basis, survivors of domestic or sexual violence who do decide to reach out to the police report a glaring lack of responsiveness to their pleas. On the other hand, in times of rebellion, the military, not the police, are the first responders.

The most striking example in modern times was the influx of forces used to suppress the 71-day occupation of Wounded Knee led by the American Indian Movement in 1973. On that occasion, the federal government sent in the FBI, US Marshals and the National Guard, equipped with helicopters, armored personnel carriers and M50 machine guns. In the end, the conflict lasted for two more years, resulting in the deaths of more than 60 Native people as well as two FBI agents. Leonard Peltier was arrested in 1976 and convicted in the death of the FBI agents. He has been in prison ever since. He has maintained his innocence throughout. Amnesty International has called for his release on humanitarian grounds.

Ending Mass Incarceration: Lessons in Solidarity

Both Dunbar-Ortiz and Estes emphasize the need to recognize the uniqueness of the colonial relationship between the US government and Native peoples. While arguing for such recognition and urging the discarding of the “Black-white binary” in philosophizing racial justice, they also highlight the centrality of the historical legacy of slavery in mass incarceration. Dunbar-Ortiz asserts that “it is in everyone’s interest to break the back of this anti-Black police violence.” She argues that this involves acknowledging that “different strands of policing and incarceration” are applied to different communities but that individuals and organizations must escape their “different silos of US oppression” and come together.

In the final analysis, Native American experiences with mass incarceration underscore two important points for those attempting to halt the growing carceral state. First, using a settler colonial framework shows the historical and systemic nature of mass incarceration. The current hyper-incarceration of Native peoples represents a continuum of Native history rather than a fundamental change. In a sense, this perspective parallels Michelle Alexander’s depiction of Black incarceration as a perpetuation of the legacy of slavery and Jim Crow segregation.

Estes’ historical account refers to reservations as “open-air prisons,” spaces that in the early days were patrolled by white vigilantes to prevent Native people from “escaping.” Boarding schools were yet another form of carceral institutions, designed to deepen the process of “control and containment,” which Estes argues was fundamental to the colonial project. Furthermore, just as police violence sparked the formation of the Black Panther Party, abuse in the prison system precipitated the formation of the American Indian Movement (AIM), the premier organization of Native resistance in the 1960s and 1970s.

AIM cofounders Dennis Banks and Clyde Bellecourt grew their organization in response to the treatment they received during their time in Minnesota prisons. From that narrow focus, AIM grew to become a respected member of a global anti-colonial movement, which drew attention to the particulars of US colonialism within its own borders. In this vein, the settler colonial framework helps fit mass incarceration into a broader narrative of the power structures of global capitalism.

Second, focusing on the historical aspects of the Native American encounter with the criminal legal system points toward genuine alternatives. Native American anti-colonial efforts have often been directed at fighting to empower tribal courts. These courts have embodied a restorative justice that focuses on healing and community building rather than punishment. Even today, many tribal courts sit in peacekeeping circles rather than vesting all authority in one judge seated on high. While politicians seek answers to mass incarceration in metadata and cutting-edge risk assessment tools, they might find a more genuine alternative by listening to Native philosophers.

Robert Yazzie, chief justice emeritus of the Navajo Nation, argues that true justice “rejects the process of convicting a person and throwing the keys away in favor of methods that use solidarity to restore good relationships among people. Most importantly, it restores good relations with self.” Yazzie’s ideas about promoting solidarity and good relationships sound more like a genuinely alternative vision than the repackaged versions of incarceration currently being served up by much of the mainstream prison reform movement.

Author’s note: Teresa Barnes, Jason Corwin, Scott Tighe and Peter Wagner offered invaluable assistance on this article.