A report from the Indian Law and Order Commission paints a disturbing picture of the criminal justice system faced by Native Americans, particularly youths. It is a situation that calls for action, for the health and safety of Indian youth, for the safety and well-being of their communities and from the perspective of simple fairness.
The commission was chaired by former U.S. Attorney for Colorado Troy Eid, an individual familiar in these parts for his interest in tribal justice while serving in that position. The title of the commission’s report, released in November, is “Roadmap for Making Native America Safer,” and its finding are chilling.
Under an 1885 law, the federal government has criminal jurisdiction over all serious crimes committed on reservations or tribal lands. What is more, under a 1938 law, Native American and Alaska Native youths who commit anything beyond misdemeanor crimes are fed into the federal criminal justice system. But as Eid told Rocky Mountain PBS, that system “has not changed since the 1930s.
“There isn’t juvenile justice with the Bureau of Prisons,” Eid continued. “It doesn’t exist there. There’s no diversion, no drug courts, no education. There are no books, no programs to reintegrate into society, nothing.”
Worse, that applies to a disproportionate number of people. While Native Americans amount to roughly 1 percent of the U.S. population, a 10-year study found Native youths accounted for 42 percent to 60 percent of all juveniles held in federal custody. And they typically serve longer sentences than similar youth processed through local jurisdictions.
In response to its finding, the commission recommended 40 changes that would require restructuring federal organization, reallocating funds and building and bolstering the criminal justice infrastructure on tribal lands. In essence, though, the idea would be to restore local crimes to local jurisdictions. After all, a crook who robs a store in Colorado is not sent to Nebraska or New York for trial and, in most cases, has no dealings with federal government. Why should offenses by tribal members on tribal lands be any different?
Well, history for one thing. Tribal justice has largely been a federal affair for more than a century. Culture and tradition aside, it is not clear if most tribes are now ready or equipped to try and subsequently incarcerate those guilty of serious crimes.
That aside, though, the real issue here is a 19th-century legacy of paternalism – and that has to change, particularly with youthful offenders. Indian Country experiences all the problems of the larger society, plus those tied to the historic, social and economic repercussions of the reservation system. Poverty, violence and addiction are all too common. And with that, the report says, Native youths experience post-traumatic stress disorder at a rate of 22 percent – equivalent to U.S. troops returning from combat. It is hard to see how any of that can be improved upon by time in federal prison.
Returning responsibility for youthful offenders and minor crimes to the tribes themselves, as Eid would have it, can improve things. The commission report says juveniles in the federal system effectively “go missing.” But what if they were held by fellow tribal members who share at least some of their experiences and sensibilities? It would also help – and only be fair – if those prisoners were sentenced no more harshly than others.
In many cases, tribes may need some additional resources to take responsibility for troubled youths and minor offenders. But tribal youths may also be more likely to receive the education and care they need. And if that is what Eid has in mind, more power to him.
