Jurisdiction over crimes in Indian country is complicated, to say the least. With recent changes, tribal police and courts can arrest and prosecute for certain crimes with sentences of up to three years. A selection of more serious felonies are handled through state courts in nine states, even when they take place on reservations.

Other serious crimes in Indian country are handled by federal prosecutors, courts, and prisons. As a result of this jurisdictional split, Native Americans are disproportionately represented in federal prison populations. Any law that affects federal prisoners will have an important impact in Indian country.

• Native American men are sent to prison at a rate that is four times the rate for white men. For Native American women, the ratio is six to one. (source) 

• In 2006, detention rates for African American youth were over 5 times, Hispanics over 2 times, and Native Americans over 3 times those for white youth. The disparities are highest for violent, drug, and public order offenses. (source)

• These disproportionate detention rates, especially when coupled with required long sentences, result in a prison population with a disproportionate number of Native Americans. A snapshot of the federal prison population in December 2015 shows 3,924 Native American prisoners, 2 percent of the total federal prison population. But outside the prison, Native Americans represent just .9 percent of the total U.S. population. Native Americans are doubly represented in federal prisons. (source)
• Although Native youth are only 1 percent of the national youth population, 70 percent of youth committed to the Federal Bureau of Prisons as delinquents are Native American, as are 31 percent of youth committed to the BOP as adults. (source)
• Native Americans are disproportionately “exposed” to the federal justice system, where sentences are longer and often mandatory. In South Dakota, for example, where Native Americans make up 8.5 percent of the population, the 60 percent of defendants in federal criminal courts in 2013 were Native Americans. In Montana, Native Americans made up a third of all federal defendants, and in North Dakota, a quarter. (source)

Enter federal sentencing reform legislation

Two bi-partisan bills – S. 2123 and H.R. 3107 – are making their way through Congress. These bills will make significant changes in laws that set long, mandatory sentences for crimes related to drugs and certain kinds of violent crime. A second conviction of a drug-related crime, for example, can require a judge to impose a sentence of at least 20 years in federal prison. The bill would reduce this requirement to 15 years, still a hefty sentence.

Judges allowed to judge.

Perhaps more significantly, the bills will restore some discretion to judges, allowing them to take into account the criminal history of individuals being charged with drug-related crimes, and the relative level of their involvement in the current crime or the “priors.”

The “Corrections Act.”

The Senate bill includes a “second half” that addresses how people spend their time in prison, and how they re-enter their lives as citizens when they’ve served their time. The “Corrections Act” part of the bill will provide for education, training, and treatment for addictions and mental illnesses. It will restore the opportunity for prisoners to enroll in college classes through the Pell grant. And it will support community resources for returning citizens trying to pick up and repair their lives outside of prison.

Impact of sentencing reform in Indian country.

Because jurisdictional laws expose Native Americans to the federal justice system, which hands out longer — and often mandatory — sentences, improvements in these sentences will improve the lives of Native Americans convicted of felonies. In 2013, the average time served by a Native American convicted of a crime with a mandatory sentence was nearly 10 years. Shorter and fewer mandatory sentences would enable a quicker and safer return to the community.

The additional services offered in the Senate version of the bill (S. 2123) could begin to address some of the immediate causes of crime and assist with re-entry to family and home communities. Addiction treatment and mental health services that have been missing in Native American communities might at last be found in the expensive and destructive prison environment. But the bill also reaches out to support strong, evidence based community programs that help people return home from the prison experience. TheReintegration Program of the Muscogee (Creek) Nation is one example that scores high on effectiveness.

Finally, the Senate bill includes a very important provision for youth – it bans solitary confinement longer than three hours for youth in federal custody.

An important turn-around.

Some of the provisions in the bill will make a dramatic difference in some lives. But most of the bill’s provisions are modest steps. The important thing is that they will lead in a different direction, making about a 160-degree turn from the current course toward longer sentences and more mandatory sentences.

The legislation addresses prison time and prisons. The entire 286-page Senate bill doesn’t offer enough to solve all the problems of the criminal justice system. The prison system is not capable of addressing the roots of crime, diverting persons with mental illnesses or addictions out of the criminal justice system and into appropriate services, or preventing involvement in crime in the first place. The bills – especially the Senate bill - will open the possibility of support for communities finding ways to reintegrate people convicted of crimes with the families and communities that were hurt by the crime. The bills offer an opening – a beginning - for many convicted persons to look forward to an earlier release and a different way of being in the world.