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Report suggests fixes to inequities in Native American incarceration rates

Gavel and Themis statue in the court library.
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Gavel and Themis statue in the court library.

A report commissioned by the MacArthur Foundation explores justice system inequities that cause Native Americans to be incarcerated at much higher rates than the general population.

Researchers’ review of state data showed that Native people make up about 7% of Montana’s population but are at least 20% of the state prison population.

Dr. Desiree Fox is Bitterroot Salish and works for the Behavioral Health Department of the Confederated Salish and Kootenai Tribes (CSKT).

“That’s what we were trying to communicate through this report is: this doesn’t work, we know it doesn’t work, and what can we do to be a little more effective within the crisis we're seeing within our communities,” she said.

Fox and her fellow authors say that one factor in the over-representation of Native Americans in prison is a history of forced confinement.

Dr. Ciara Hansen is Shawnee and Cherokee and works with the Northern Navajo Medical Center in New Mexico.

“Native people have been confined in multiple ways over history. They’ve been confined on reservations, in insane asylums, in boarding schools, and now carceral systems, and many other ways- financially and economically,” Hansen said.

Looking at the contemporary policies that impact the over-incarceration of Native people, the analysis highlights lack of funding for public defenders, increased pretrial detainment and the complex tribal, state and federal jurisdictional overlaps that encircle reservation communities.

Looking at the contemporary policies that impact the over-incarceration of Native people, the analysis highlights lack of funding for public defenders, increased pretrial detainment and the complex tribal, state and federal jurisdictional overlaps that encircle reservation communities.

Anne Miller is the supervising attorney for the Tribal Defenders Office of the CSKT.

“I may have a client who may be charged in both jurisdictions out of the same transaction. When you have multiple jurisdictions exercising their power over you, it’s more likely to be confusing, it’s more likely to be drawn into the system. That’s what we’re seeing with our clients,” she said.

The report says that efforts to address the rate of incarceration of Native people should start at the tribal level. Authors suggest tribes in Montana should adopt a “holistic defense” program based on a model developed in New York in the 1990s.

In this system, an interdisciplinary team of social workers, educators, and advocates connect clients with services like behavioral health, housing, and cultural mentoring that can help them disentangle from the justice system.

According to a 2019 study published in the Harvard Law Review, participants in the New York program had an average sentence length reduced by more than 20%. That study found no significant impact on conviction or recidivism rates.

The Confederated Salish and Kootenai Tribes have implemented holistic defense in a tribal setting and have seen positive results. In the program’s first year, recidivism rates among chronic offenders dropped by more than 50%.

The Confederated Salish and Kootenai Tribes have implemented holistic defense in a tribal setting and have seen positive results. In the program’s first year, recidivism rates among chronic offenders dropped by more than 50%.

Much of the Tribal Defenders’ success has come from helping formerly incarcerated people find jobs, housing and mental health services.

“When we think about solutions for the over representation of native people in justice systems, I want to emphasize services, supportive services, to our clients,” Miller said.

Since its inception, the program has also helped more than 250 clients restore suspended driver’s licenses.

Dr. Hansen says that successful programs like the one at CSKT can demonstrate ways to combat mass incarceration more broadly.

“Even if we can make progress in Indigenous systems, I hope that those indigenous systems can then model how we could address mass incarceration for non-Indigenous people,” Hansen said.

John joined the Montana Public Radio team in August 2022. Born and raised in Helena, he graduated from the University of Montana’s School of Media Arts and created the Montana history podcast Land Grab. John can be contacted at john.hooks@umt.edu