Native Americans and the prison–industrial complex

The prison–industrial complex is the rapid expansion of US inmates and prisons in favor of private prison companies and businesses that profit from the services needed in the construction and maintaining of prisons. The businesses benefit and profit from cheap prison labor, food services, medical services, surveillance technology, and construction. The financial incentive of building prisons encourages incarceration and affects people of color at disproportionately high rates. Native Americans are the largest group per capita in the US prison system and are more likely to be affected by police violence than any other racial group.^[1]

Incarceration statistics

According to the Bureau of Justice Statistics, Native Americans are incarcerated at a rate that is 38% higher than the national average.^[2] In 19 states, they are more overrepresented in the prison population compared to any other race and ethnicity.^[3] Between 2010 and 2015, the number of Native Americans incarcerated in federal prisons increased by 27%.^[4] In Alaska, data published by the 2010 US Census revealed that 38% of incarcerated people are American Indian or Alaskan Native despite the fact that they make up only 15% of the total population.^[3] In Hawaii, Native Hawaiians make up 24% of the general population but account for 39% of the incarcerated population, according to the Office of Hawaiian Affairs.^[5] Native youth are highly impacted by the US prison system, despite accounting for 1% of the national youth population, 70% of youth taken into federal prison are Native American.^[6] Native American men are admitted to prison at four times the rate of white men, and Native American women are admitted at 6 times the rate of white women.^[6]

Effects of US intervention on tribal governments

Tribal governments have much more limited jurisdiction compared to federal justice systems and US state systems.^[7] The Major Crimes Act in 1885, Public Law 280 in 1953, The Indian Civil Rights Act of 1968 and the case law of Oliphant v. Suquamish Indian Tribe in 1978 are some of the first historic laws among many passed by the United States government to gain federal control over native nations.^[7] This has caused the crime on Native reservations to often be prosecuted under federal law, which entails more severe sentencing than state law for the same crime.^[4] Non-native criminals including sexual predators and drug traffickers have taken advantage of the unclear chain of authority on Native lands. This disjuncture between federal government jurisdiction and tribal government jurisdiction allows non-native criminals to avoid punishment while Native members are subjected to sexual and drug-related violence.^[8]

Police violence against Native Americans

Police brutality against Native Americans contributes greatly to the rising incarceration rates and deaths of Native people. While Native Americans only make up 1.2% of the total population in the US, Natives experience higher rates of death due to police violence than any other racial group.^[9] Native Americans are 3 times more likely than white Americans to be killed by police.^[6]

Advocacy

Native Lives Matter

The "Native Lives Matter" campaign is a grassroots group advocating for awareness and justice for missing and murdered Indigenous women and Native lives killed by police violence. The campaign was established in 2014 by Akicita Sunka-Wakan Ska from the Cheyenne River and Standing Rock Sioux Tribes and JR Bobick from St. Paul, Minnesota.^[6] This campaign uses social media like Facebook and Twitter to spread awareness about issues affecting the Native population, such as police brutality, high incarceration, and missing murdered indigenous women. The campaign believes ways to lessen and end police brutality and high incarceration rates include hiring a police force that better represents Native communities.^[9] They believe that this would allow more cultural understanding and lead to less racial profiling against tribal nations by police enforcement. Native Lives Matter also believes that cultural healing programs could address and eventually lessen police brutality by fostering an understanding of mental health, addiction, and poverty which contribute to high police presence.^[6]

Policy Making

Policy Structures and Federal Dominance

Federal and state policy frameworks play a central role in shaping incarceration disparities in Native American communities, relative to other American populations. The roots of Native over-incarceration lie in long-term processes of historical oppression and federal intervention that weakened Indigenous justice systems^[10]. Early federal policies displaced traditional governance structures, imposed alien legal frameworks, and restricted the authority of tribal nations to administer justice in their own communities. These interventions created the jurisdictional landscape still present today. A key structural issue is jurisdictional fragmentation, in which tribal, federal, and state governments maintain overlapping jurisdiction over crimes that occur in Native land. The Major Crimes Act of 1885 established federal jurisdiction over significant crimes committed by Native Americans in Indian Country, superseding long-standing tribal legal authority. This is just one example of the structural limitations that have shaped Native justice systems throughout history. Public Law 280, passed in 1953, severely undermined sovereignty and established the overlapping, disjointed system that still exists today by transferring criminal authority in many tribal territories to state governments without indigenous approval^[11]. These arrangements restrict tribal sovereignty while increasing Native people’s exposure to multiple systems of policing, prosecution, and sentencing. This results in a confusing jurisdictional environment that often yields unequal treatment and inconsistent access to justice. In many tribal courts, the right to counsel is not constitutionally guaranteed. The Safety and Justice Challenge report notes that Native defendants frequently enter the criminal justice system without adequate legal support, leading to disparities in conviction rates, sentencing outcomes, and procedural protections^[12]. These inconsistencies reflect structural inequities rather than individual-level differences.

Alaska Native Communities and Policy Neglect

The Indian Law and Order Commission’s 2013 report on Alaska reveals how policy decisions intensify justice challenges for Alaska Native communities. The Commission documented that most Alaska Native villages lack basic justice infrastructure due to ongoing and historic policy neglect. The Alaska Department of Public Safety maintains an estimated “1.0–1.4 officers per million acres,” leaving more than 75 communities without any local law enforcement presence^[13]. As a result, many villages rely on volunteer responders or untrained community members in situations involving violence, emergencies, or crisis intervention. At the same time, state-centralized authority limits the ability of Alaska Native tribes to develop and enforce their own laws. Federal funding for tribal courts in Alaska has historically been sporadic and insufficient, preventing tribes from building consistent justice institutions. These conditions create a dual outcome where Alaska Native people experience chronic under-protection from state systems while also facing disproportionate criminalization when law enforcement does intervene. According to the Commission, these outcomes are policy-driven rather than the result of cultural practices or community behaviors. Taken together, expert analyses show that the over-incarceration of Native people across the United States is rooted in structural policy design, including limits on tribal sovereignty, overlapping jurisdictions, chronic underfunding, and legal barriers that inhibit tribal control over justice processes.

Border Policy, Mobility, and Criminalization

Native over-incarceration is also shaped by border policy structures that criminalize Indigenous mobility. Luna-Firebaugh’s analysis of Indigenous border issues demonstrates that many Native nations possess homelands that extend across the U.S. – Canada and U.S.–Mexico borders, yet federal policy does not recognize their sovereign right to travel within these territories. Throughout the late twentieth century, Indigenous leaders organized to address these barriers. One major effort was the 1988 Regional Border Rights Meeting held in Tucson, Arizona, which brought together tribes from border regions to document the impacts of federal border enforcement on cultural travel, subsistence activities, and family ties. Additionally, the 1999 Joint Assembly of First Nations and National Congress of American Indians in Vancouver, British Columbia, sought to develop a coordinated transnational Indigenous policy position on mobility rights, treaty recognition, and Indigenous-defined citizenship. Federal governments did not act on the clear policy recommendations that these efforts created, such as Indigenous-determined citizenship, unrestricted travel between homelands, and Indigenous participation in binational border commissions. Even when crossing for cultural, familial, or subsistence reasons, Indigenous people are vulnerable to monitoring, detention, and arrest because of the lack of mobility rights. Luna-Firebaugh argues that these practices expand policing into Indigenous communities and reinforce broader carceral structures by treating Native travelers as subjects of immigration enforcement instead of members of sovereign nations^[14]. Advancing Indigenous mobility rights, she concludes, requires federal recognition of treaty-based obligations, greater Indigenous participation in policymaking, and strengthened transnational Indigenous political coalitions.

Indigenous-Led Justice Reforms

Although federal and state structures continue to shape justice inequities, many tribes have developed effective, community-based reforms grounded in Indigenous values. These initiatives reflect what scholars describe as “problems work”: efforts by practitioners to create local solutions that promote safety, accountability, and healing outside punitive frameworks. One notable example is the Tribal Defenders Office (TDO) of the Confederated Salish and Kootenai Tribes, located in northwestern Montana. This office implemented a holistic defense model that integrates legal advocacy with social services, cultural resources, and community support. Rather than focusing exclusively on legal outcomes, the TDO provides clients with culturally grounded counseling, case management, and assistance addressing root causes of criminalized behavior. Expert evaluations indicate that this model reduces system involvement and improves long-term well-being among participants^[15]. Another significant initiative is the CIRCLE Project (Comprehensive Indian Resources for Community and Law Enforcement), a collaboration among the U.S. Department of Justice and three tribal nations. Research by Wakeling et al. shows that the Pueblo of Zuni, located in western New Mexico and home to approximately 12,000 people, achieved meaningful system-wide reform by adopting several mutually reinforcing strategies. These included the development of data-informed planning, which allowed tribal officials to identify patterns and allocate resources according to community-determined priorities; strengthened interagency coordination, which improved communication and reduced administrative fragmentation between police, courts, and social-service networks; investment in community-based programs, including youth initiatives, substance-use services, and family supports; and culturally aligned planning, ensuring that reforms reflected Zuni values, traditions, and governance structures^[16]. Across the CIRCLE tribes, measurable improvements in community safety and reductions in harmful behaviors emerged when tribes exercised autonomy, controlled resources, and assessed their own progress using culturally relevant indicators.

Native Women and Gendered Pathways Into Incarceration

Native American women experience incarceration at rates far exceeding those of other racial and gender groups, reflecting intersections of structural violence, gendered racism, and colonial policy. Carma Corcoran’s 2023 study highlights the distinct experiences of Native women who encounter the criminal legal system amid compounded trauma, disconnection from cultural identity, and limited institutional support. Corcoran’s research centers on programs such as the Healing the Sacred Hoop workshop and traditional talking circles, which demonstrate the effects of culturally grounded, healing-centered programming. Narratives from participants illuminate the transformative potential of these practices. For example, Myrna describes the sweat lodge ceremony as life-saving, restoring her sense of identity and belonging. Misty recounts how participation in cultural programming helped her interrupt patterns of generational trauma and rebuild family stability^[17]. Brandie and Barbara likewise describe ceremony as a rare source of emotional safety and community support in an otherwise punitive system. Corcoran argues that these programs exemplify gentle action theory, an approach that emphasizes listening, humility, respect, and non-imposition^[18]. When governments support Indigenous-led healing programs, documented outcomes include reduced recidivism, increased well-being, strengthened cultural identity, and improved community connection. Conversely, the absence of such programs contributes to continued marginalization and harmful conditions for Native women in carceral settings.

References

1. "Who Are Police Killing? — Center on Juvenile and Criminal Justice". www.cjcj.org. Retrieved November 10, 2018.
2. Greenfield. "American Indians and Crime" (PDF). Bureau of Justice Statistics. US Department of Justice.
3. Sakala, L. "Breaking Down Mass Incarceration in the 2010 Census". www.prisonpolicy.org.
4. Flanigan, J (April 27, 2015). "Native Americans are the unseen victims of a broken US justice system". Quartz. Retrieved October 7, 2018.
5. Young, Kalaniopua (2015). Captive Genders: Trans Embodiment and the Prison Industrial Complex (PDF). pp. 83–96.
6. "Native Lives Matter" (PDF). Lakota People's Law Project. February 2015.
7. Sarah, Deer (2005). "Soviengty of the Soul: Exploring the Intersection of Rape Law Reform and Federal Indian Law". Suffolk UL. 37: 455–466.
8. Azar, Beth. "When Tribal Law Conflicts with Federal Law". American Psychological Association. Retrieved November 9, 2018.
9. "Native Lives Matter" (PDF). Lakota People's Law Project. February 2015.
10. Safety and Justice Challenge, Over-Incarceration of Native Americans: Roots, Inequities, and Solutions (MacArthur Foundation, 2022).
11. National Congress of American Indians, Fiscal Year 2019 Indian Country Budget Request: Annual Report to Congress.
12. United States, Bureau of Justice Statistics, National Prisoner Statistics, [United States], 1978–2018 (Inter-university Consortium for Political and Social Research, 2020), cited by Safety and Justice Challenge, Over-Incarceration of Native Americans: Roots, Inequities, and Solutions (MacArthur Foundation, 2022).
13. Indian Law and Order Commission, “Chapter Two: Reforming Justice for Alaska Natives: The Time Is Now,” in A Roadmap for Making Native America Safer (2013).
14. E. M. Luna-Firebaugh, “The Border Crossed Us: Border Crossing Issues of the Indigenous Peoples of the Americas,” Wicazo Sa Review 17, no. 1 (2002): 159–181.
15. Safety and Justice Challenge, Over-Incarceration of Native Americans: Roots, Inequities, and Solutions (MacArthur Foundation, 2022).
16. Stewart Wakeling et al., Policing on American Indian Reservations: A Report to the National Institute of Justice (U.S. Department of Justice, NIJ Grant 221080).
17. Carma Corcoran, The Incarceration of Native American Women: Creating Pathways to Wellness and Recovery Through Gentle Action Theory (Lexington Books, 2023).
18. Carma Corcoran, The Incarceration of Native American Women: Creating Pathways to Wellness and Recovery Through Gentle Action Theory (Lexington Books, 2023).