Marianne O. Nielsen - Crime and Social Justice in Indian Country

MARIANNE O. NIELSEN AND KAREN JARRATT-SNIDER

INDIGENOUS PEOPLES in the United States are nearly invisible in discussions of criminal and social justice. The focus is usually on African Americans or Hispanic Americans, mainly because their numbers are much larger within the general population and within the criminal justice system. Whether the discussion is about offenders, victims, or service providers, American Indians are usually left out. Their numbers are lumped into the Other category in government statistics, unless they are the subjects of a special report that may come out once every ten years or so (see, for example, Perry 2004). Otherwise, the issues of criminal justice that touch their lives and communities are ignored except by a handful of scholars and the community members themselves. In other colonized countries such as Canada, Australia, and New Zealand, this is not the case. There, Indigenous peoples are the population of concern for the government in the criminal justice and social justice arenas, and the proliferation of studies and reports reflect that. This book provides one small restorative dose for the neglect of American Indian criminal and social justice issues in the United States.

Criminal and social justice are essential areas of study as they relate to Native Americans or American Indians or Indigenous peoples, terms we use interchangeably. These issues have their roots in injustices first perpetrated during colonization.

Indigenous peoples, to borrow from Canadian lawyer Bradford W. Morse (1989, 1), are all people who trace their ancestors in these lands to time immemorial. This includes individuals of part-Indigenous ancestry and individuals who live away from ancestral lands. In the United States, these Indigenous peoples are referred to as Native Americans (which includes Native Hawaiians, Inuit, and Alaska Natives), as American Indians, or, most respectfully, by the name of their nation. In Canada they are Aboriginal peoples, First Nations, Mtis, or again, the people of their nation. In New Zealand, they are Mori; in Australia, they are Indigenous Australians. There are Indigenous peoples in any country that has been colonizedBrazil, China, Greenland, Mexico, Mongolia, Norway, South Africa, Taiwan, Zambia, and a very long list that could follow. They share many characteristics; many members of their populations are marginalized, that is, lacking economic, social, and political power; are impoverished due to exploitation and loss of resources; are stereotyped and suffer from discrimination; have a history of coerced assimilation by the colonizing state; have little autonomy and self-determination; are recovering from serious social disorganization caused by the loss of population due to violence, the loss of culture due to coerced assimilation, and the loss of social institutions due to imposed laws; and are overrepresented in the criminal justice systems of their country as offenders and victims. As a result of this history, criminal justice for Indigenous peoples is intricately interwoven with social justice. Social and criminal justice issues for Indigenous peoples are different from those of other disadvantaged populations because the history that caused them is different. The solutions to the issues must also be different if they are going to be effective.

This book mainly encompasses the research on issues of social and criminal justice in the United States, and the innovative responses of

In more general terms, Native communities are among the most marginalized, economically, politically, and socially, in the United States. To add insult to injury, they are constrained by more laws than any other diverse group. Many human rights and justice-related issues are unique to Indigenous America because of the special legal status of Native Americans and the highly complex jurisdictional issues resulting from colonial ideologies being institutionalized into federal law and policy. For example, contradictory shifts in federal Indian policy from 1830 to 1934 resulted in several land statuses being present within a single tribal jurisdictional area,which today lead to complex problems in finding resolutions to environmental and criminal justice issues and for tribal nations trying to exercise sovereignty around economic development opportunities.

This example brings to the forefront another justice issue for Indigenous peopletreatment by the criminal justice system. Due to the various shifts in U.S. federal Indian policy from the 1850s to the 1970s and various changes in federal laws, criminal jurisdiction in Indian Countryin the legal sense of the termmeans that many Native Americans fall subject to state laws and prosecution, rather than that of their own Indigenous nation, even when a crime falls within the borders of their tribe. Issues of institutional and individual discrimination range from discriminatory laws, to the indifference of criminal justice personnel to homeless Indigenous individuals (see, for example, Razack 2015), to stereotyping, to brutality. Injustices also occur in arrest, sentencing, and incarceration, although the research is lacking and what exists is contradictory (Nielsen and Robyn 2018).