Indigenous peoples in the United States and mass incarceration

[Individual articles from the Summer 2018 issue of Intersections will be posted on this blog each week. The full issue can be found on MCC’s website.]

Painting a full picture of mass incarceration in the United States requires a reckoning with how Indigenous peoples in the U.S. are disproportionately arrested and sentenced in comparison to the broader population. In an interview with the Wall Street Journal, North Dakota chief federal district court judge Ralph Erickson confessed that “No matter how long I have been sentencing in Indian Country, I find it gut-wrenching when I am asked by a family member of a person I have sentenced why Indians are sentenced to longer sentences than white people who commit the same crime.” Erickson’s experience prompted him to initiate a federal review of how Indigenous defendants are sentenced and to analyze disparities between their sentences and sentences imposed on the broader population. A similar review was conducted over ten years ago, but resulted in few changes. That no meaningful steps have been taken to address the criminal justice system’s disproportionately negative impact on Indigenous communities would not come as a surprise to Indigenous peoples themselves, who have endured over five hundred years of genocide, oppression and marginalization.

The number of Indigenous persons incarcerated in federal prisons continues to rise. In South Dakota, the state with the fourth largest percentage of Indigenous peoples, 60% of the federal caseload consists of Indigenous defendants, even though Indigenous persons represent only 8.5% of the total state population. This trend repeats itself in other states. So, for example:

  • Past studies by the Bureau of Justice Statistics show that Indigenous peoples face a 38% higher incarceration rate than the national average.
  • The Center on Juvenile and Criminal Justice reports that Indigenous people are more likely to be killed by police than all other racial groups.
  • The Lakota People’s Law Project has found that Indigenous men are incarcerated at four times the rate of white men, while Indigenous women are incarcerated at six times the rate of white women.

The inequities within our legal system are evident not only in statistics but also in comparison of specific cases. In the Report of the Tribal Issues Advisory Group from May 2016, Judge Myron Bright points to the ten-year sentence given to a 25-year-old Indigenous mother of three for the death of her newborn, while during the same year, in the same state, for an identical crime, a non-Indigenous woman received a sentence of three years’ probation.

The fact that the national conversation on mass incarceration (when it happens at all) tends to omit the realities faced by Indigenous peoples further perpetuates Indigenous erasure within our communities. Just as some have argued that mass incarceration represents a continuation of the legacy of enslavement of African Americans, so should the criminalization of Indigenous peoples be viewed as a continuation of the colonization and confinement that Indigenous peoples have endured.

This legacy of colonization and genocide of the Indigenous peoples of Turtle Island has its roots in the Doctrine of Discovery, a theological, philosophical and legal framework established by papal decrees that provided European governments moral and legal rights to invade and seize Indigenous lands and dominate Indigenous peoples. The Doctrine of Discovery’s legacy is felt in multiple ways in how the judicial system treats its Indigenous peoples, such as the referral of Indigenous defendants charged with felonies on reservations to federal jurisdictions, meaning that they are not tried by their own tribal authorities and face the longer sentences imposed by federal courts.

What hope can be found for Indigenous communities facing a discriminatory legal system that disproportionately sentences Indigenous peoples to prison? Activist and author James Kilgore calls for renewed anti-colonial efforts to empower tribal courts. These courts, he argues:

have embodied a restorative justice that focuses on healing and community building rather than punishment. Today, many tribal courts sit in peacemaking circles rather than vesting all authority in one judged 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 people.

Kilgore’s words provide an important reminder that the struggle against mass incarceration, which so disproportionately impacts communities of color, including Indigenous communities, must be led by and be accountable to those communities.

Lorraine Stutzman Amstutz is MCC U.S. restorative justice coordinator.

Learn more

Flanagin, Jake. “Native Americans are the Unseen Victims of a Broken U.S. Justice System.” Quartz. April 27, 2015. Available at

Frosch, Dan. “Federal Panel Reviewing Native American Sentencing.” Wall Street Journal. April 21, 2015.

Greenfield, Lawrence and Steven K. Smith. American Indians and Crime. Report produced by the Bureau of Justice Statistics, U.S. Department of Justice. February 1999.

Kilgore, James. “Mass Incarceration since 1492: Native American Encounters with Criminal Injustice.” Truthout. February 7, 2016. Available at

Lakota People’s Law Project.

Males, Mike. “Who Are Policy Killing?” August 26, 2014. Center for Juvenile and Criminal Justice. Available at

Report of the Tribal Issues Advisory Group. United States Sentencing Commission. May 16, 2016. Available at



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