Special Facilities and Populations - Jails In Indian Country

Tribal Jurisdiction

In its management of Native American nations, Congress reserved for federal jurisdiction fourteen crimes committed by or against Native Americans in Indian Country (tribal lands and reservations; for the U.S. Code, see http://uscode.house.gov/). The relevant provisions of the Major Crimes Act of 1885, codified as 18 USC 1153, read as follows:

TABLE 10.2
Prisoners under military jurisdiction, by branch of service, yearend 1996–2003
SOURCE: Kathleen Maguire and Ann L. Pastore, editors, Table 6.61. "Prisoners under Jurisdiction of U.S. Military Authorities by Branch of Service, Dec. 31, 1996–2003," in Sourcebook of Criminal Justice Statistics, Bureau of Justice Statistics, August 2004, http://www.albany.edu/sourcebook/pdf/t661.pdf (accessed March 30, 2005)

TABLE 10.3
Prisoners in custody of correctional authorities in U.S. territories and commonwealths, yearend 2002 and 2003
SOURCE: Paige M. Harrison and Allen J. Beck, "Prisoners in Custody of Correctional Authorities in the U.S. Territories and Commonwealths, Yearend 2002 and 2003," in Prisoners in 2003, Bureau of Justice Statistics, November 2004, http://www.ojp.usdoj.gov/bjs/pub/pdf/p03.pdf (accessed March 30, 2005)

1. Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury (as defined in section 1365 of this title), an assault against an individual who has not attained the age of 16 years, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
2. Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense.

In other words, under 18 USC 1153 serious crimes must be tried in federal court if federal criminal code can be brought to apply—and if not, it falls to the states to try such crimes.

In Public Law 280, passed in 1953 and codified as 18 USC 1162, Congress made the state responsibility clearer:

(a) Each of the States or Territories listed in the following table [table lists Native American jurisdictions within Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin] shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State or Territory to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory, and the criminal laws of such State or Territory shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory.

This provision of U.S. Code gives states authority over criminal prosecutions taking place on reservations. Offenses left over for tribal jurisdiction are, in effect, petty offenses and misdemeanors. In the Indian Civil Rights Act of 1968 (ICRA), Congress spelled out the limitation under which tribal courts could operate. The relevant provision was codified as 25 USC 1302 (7):

No Indian tribe in exercising powers of self-government shall (7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000, or both.

Native American Offenders under Tribal Jurisdiction

In 2002, 47,724 Native Americans and Alaska Natives were under correctional supervision, 22,245 of whom were in custody and 25,479 under community supervision, either on parole or probation. (See Table 10.4.)

Of the 22,245 in custody in 2002, 2,006 (9%) were held in jails in Indian Country. Most (58%) were in state prisons; 6,000 (27%) were held in local jails in cities, towns, and counties; and 1,315 (5.9%) were in federal prisons. (See Table 10.4.) Similarly, virtually all of those under community supervision were under state or federal control, most on probation (80.7%), the rest on parole (18.9%).

Of the 2,006 inmates held in Indian Country jails in 2002, 1,399 were adult males (69.7%). Most inmates had been convicted of a misdemeanor (86%) rather than a felony (5.3%). Some 35% (699) had committed a violent offense. (See Table 10.5.)

Based on U.S. Census Bureau definitions, Native Americans lived either inside or outside of "identified areas," these being reservations, trust lands, tribal designated statistical areas, tribal jurisdiction statistical areas, TABLE 10.4
Native Americans under correctional supervision, 2001–02
SOURCE: Todd D. Minton, "American Indians and Alaska Natives under Correctional Supervision, 2001–02," in Jails in Indian Country 2002, Bureau of Justice Statistics, November 2003, http://www.ojp.usdoj.gov/bjs/pub/pdf/jic02.pdf (accessed March 30, 2005)

TABLE 10.5
Indian country jail inmate characteristics, midyear 2001–02
SOURCE: Todd D. Minton, "Table 1. Indian Country Jail Inmate Characteristics, Midyear 2001–2002," in Jails in Indian Country 2002, Bureau of Justice Statistics, November 2003, http://www.ojp.usdoj.gov/bjs/pub/pdf/jic02.pdf (accessed March 30, 2005)

TABLE 10.6
Indian country inmates and facility capacity, 1998–2002
SOURCE: Todd D. Minton, "70 Facilities Were Operating in Indian Country, with the Capacity to Hold 2,177 Persons on June 28, 2002," in Jails in Indian Country 2002, Bureau of Justice Statistics, November 2003, http://www.ojp.usdoj.gov/bjs/pub/pdf/jic02.pdf (accessed March 30, 2005)

and Alaska Native village statistical areas. According to the Statistical Abstract of the United States 2004–05 (Washington, DC: Census Bureau, 2005), the 2000 Census of the U.S. population included 4,119,301 Native Americans and Alaska Natives.

Following the 1990 Census, the bureau published data showing that, as of April 1990, 37.7% of Native Americans, Eskimos, and Aleuts lived "inside" these areas; the majority lived "off the reservation" (Statistical Abstract of the United States 1993, Washington, DC, 1993). Similar data for the 2000 Census have not as yet been tabulated. Proportionally more Native Americans live in Indian Country than are tried and held in tribal facilities when they commit offenses because the legal structure governing offenses favors federal and state jurisdictions.

Tribal jails are crowded much like state and federal facilities—and appear to be growing slightly more crowded. (See Table 10.6.) In 1998, 76% of jail beds were in use in midyear, and 119% of capacity was used on the peak day, in June. Capacity increased more slowly than incarcerations so that by 2002 some 92% of capacity was in use in midyear and jails in Indian Country operated at 126% of capacity on the peak day in June.