Frequently Asked Questions: Tribal Reentry
This FAQ was created by the National Reentry Resource Center's Committee on Tribal Affairs. The committee is chaired by Ada Pecos Melton, who is the primary author of this FAQ.
Q: Who is considered an American Indian or Alaska Native (AI/AN) person?
A: Several terms are commonly used to refer to the first Americans. Most of the 565 federally recognized Indian nations* identify themselves and their citizens with their indigenous names spoken in their tribes' native language. However some tribal, state and federal statutes have defined the reference Indian and Indian Tribe for purposes of a specific law.† This document uses the term "American Indian / Alaska Native" (AI/AN) people to describe individuals who are members of tribes, villages, pueblos, and Rancherias in the United States. The localities in which AI/AN people belong are referred to collectively as "Indian Country."‡ Q: Does incarceration affect an individual's right to live in Indian Country?A: The 565 federally recognized Indian nations have inherent authority to determine their citizenship or enrollment criteria. AI/AN people who live on tribal lands generally fall under the jurisdiction exercised by that Indian nation and are obligated to comply with all tribal laws and customs. Any crimes committed by AI/AN people on tribal lands would be handled according to the tribes' jurisdictional authority. AI/AN citizens from other tribes or non-Indians may also be permitted to live on tribal lands based on individual circumstances, such as a marital relationship or other family relationship, education placement, employment, or other specified reasons. Therefore, individuals released from prison who wish to return to or live on tribal lands may need to request permission from the tribal government and village officials. This means that both the individual and the releasing facility must have working knowledge of and relationships with tribal government officials to obtain the needed permissions. Q: Why do tribes need reentry programs?A: AI/AN adult and juvenile offenders may serve jail or prison commitments in tribal, local, state or federal facilities. Nonetheless, many are released to tribal communities when their commitments end to re-unite with family members or reconnect with their tribes. They are the parents, sons, daughters, relatives and friends of AI/AN citizens. AI/AN communities must be prepared to attend to the needs of returning individuals and their families and address community concerns. Q: Who should be involved in reentry planning for AI/AN people?A: Returning offenders face multiple complex needs and issues as they transition from prison and jail and settle into everyday life once they are home. Many will need to find work, return to school, or find housing while fulfilling mandatory post-release supervision conditions. No one tribal or community agency will be able to respond to these multiple concerns; therefore, collaboratively developed reentry plans for each returning offender are essential. Collaborative reentry planning should include
To learn more about stakeholders in a multidisciplinary tribal reentry initiative, see American Indian Development Associates, Strategies for Creating Offender Reentry Programs in Indian Country (Washington, D.C.: US Department of Justice, Office of Justice Programs, 2010), http://www.aidainc.net/Publications/Full_Prisoner_Reentry.pdf. Q: How can reentry planning address issues that are unique to AI/AN people?A: Reentry plans should address the unique issues, concerns, and needs of AI/AN people. Non-tribal correctional administrators and practitioners, as well as local and state policymakers, can become culturally literate by involving stakeholders from tribal communities in the reentry process. The knowledge, skills, and abilities they will gain through these partnerships should inform the programs they design to assist AI/AN people while they are in correctional facilities, as they prepare to return home, and while they are under community supervision. Tribal involvement in reentry should begin at the time an AI/AN person is admitted to a tribal, state or federal facility. Working on reentry from the time a person is incarcerated-rather than 90 to 180 days before a person is released-establishes the transition process as a primary goal and objective. This enables tribal providers to offer input to correctional administrators and connect both the offender and facility staff to tribal resources. These resources may also include traditional culture-based counseling, healing ceremonies, and spiritual support, as well as probation officers who work in Indian Country and tribal community-based service providers. By involving tribal authorities early in the reentry process, reentry planners can ensure that the tribe is prepared for the individual's release. Some returning AI/AN individuals may need the tribes' permission to obtain or restore any citizen benefits that the tribe may have restricted or suspended as a result of the criminal offense. These may include access to housing, educational scholarships, and health benefits. By being involved from the outset, tribal leaders can stay informed of the individual's status in order to prepare for his/her return to the community. Q: What can tribal leaders do to prepare for an individual's return to the community?
A: When it comes to reentry, a prepared tribal community is a supportive community. To promote community preparedness, tribal leaders should educate the community about the needs of ex-offenders while simultaneously ensuring that community concerns are also addressed. Tribal leaders should prioritize connecting these individuals, and their families, to community-based supports and services. The lack of community-based support is often a contributing factor when individuals reoffend or relapse into high-risk behaviors (such as substance abuse or associating with negative peer influences). Therefore, it is essential that tribes provide returning adults and youth with community-based services that may include ongoing monitoring and supervision, treatment for substance use or mental health disorders, employment training and placement, housing assistance, education, health care and other supports. Investing in such services promotes health and wellness and is less costly to tribes than the community-wide economic impact of repeated incarceration. Q: What role does a tribe's legislative body (such as the tribal council) have in reentry?A: Tribal legislative bodies play an important role in supporting the establishment of local reentry programs. This may include passing enabling legislation and other policies to support reentry initiatives and programs. Some tribes may require legislative or tribal council approval to enter joint interagency policies and intergovernmental agreements (IGAs). Tribal legislative bodies may enter IGAs with state corrections officials in order to receive notification of adult AI/AN offenders returning to the tribal community.1 Q: Why should tribes enter intergovernmental agreements with non-tribal governmental authorities?A: Indian tribes are sovereign nations. Therefore, to codify partnerships they should enter IGAs with other tribes as well as municipal, county, state, or the federal government. These government-to-government relationships are important ways to enable cross-jurisdictional partnerships, collaboratively develop policies and procedures, provide cross-agency training, and coordinate referral and service delivery systems. IGAs are necessary to support the work of justice administrators and practitioners and allied agencies at all levels of government that work with AI/AN people confined in tribal, local, state, or federal facilities. Two New Mexico tribes have entered into IGAs with the state's Children, Youth and Families Department (CYFD) that enable court-involved AI/AN youth to access state-controlled resources and services, and for the tribe to send these youth to state-operated long-term correctional facilities.2 The agreements also stipulate that tribal and state agencies will engage in joint reentry planning that begins at the time the youth is placed in the state facility. Each IGA includes provisions for the formation of a "Coordination Committee" comprised of tribal and CYFD representatives that meet regularly to discuss issues such as coordination and how the parties are communicating, policies and procedures, caseload trends and their implications, tribal customs and laws, federal, state or tribal laws and regulations, and other issues. Both tribes required tribal council approval to make revisions to the their children's codes and to add provisions allowing these IGAs. They also required tribal resolutions to pass the code amendments and an additional resolution to approve the IGAs. Q: Do tribes have their own justice systems?A: Indian nations throughout Indian Country have always had mechanisms to maintain peace, law, and order and to resolve disputes and conflicts between community members and correct those who violate community laws and customs. Generally AI/AN tribes retain the inherent authority and responsibility for public safety and protection within the tribal territory. This includes the authority to determine the legal structure and forums to use in administering justice. However, federal legislation defines whether jurisdiction falls to the tribal, state, or federal government. Q: What role does the federal government play in criminal justice matters that occur in Indian Country, and how does this affect reentry?A: Federal law enforcement, prosecutors, courts, and corrections have unique investigatory, prosecutorial, case processing, and correctional responsibilities over AI/AN offenders for offenses covered by the Major Crimes Act§ and the Indian Country Crimes Act (also referred to as the General Crimes Act). For this category of crimes, investigation is generally handled by federal law enforcement agencies and prosecution by U.S. Attorneys, excluding those tribes affected by PL 280 (see the following question). Convictions resulting from federal prosecution can result in incarceration in either federal or state correctional facilities. AI/AN youth are more likely to be committed to state facilities due to the lack of federal institutions for young people. A BJS survey found that federal prisons housed 3,154 AI/AN prisoners, representing 11 percent of the total AI/AN inmate population (29,400) confined in midyear 2009. Once an AI/AN person is referred for federal prosecution, tribes lose jurisdiction and control over what happens to that person in federal court in several regards, such as sentencing decisions and where the person is incarcerated. This makes it essential for tribal governments to have working relationships with the federal or state facilities where AI/AN adults and juveniles are confined. Equally important, to meet the needs of AI/AN people in federal custody, it is important for facility administrators and practitioners to have working knowledge of the cultural and other unique needs of this population while they are confined and to support their transition back to their tribal communities. Q: What is PL 280, and how does it affect how a jurisdiction plans for reentry?A: When Congress passed Public Law 83-280 (PL 280) in 1953, it transferred extensive legal authority (jurisdiction) from the federal government to state governments in six states where it was mandated and ten states where it was optional. PL 280 changed the division of legal authority among tribal and federal governments by introducing state authority. The main legal impact was to extend state criminal jurisdiction and apply state criminal laws onto AI/AN reservations within the affected states. It also eliminated the special federal criminal jurisdiction on these reservations that had existed prior to passage of the law and shifted it to the state. The grant of criminal jurisdiction to the states was broader than the limited federal criminal jurisdiction existing prior to PL 280, and consequently expanded the realm of non-Indian control over reservation activities. As a result, AI/AN adults and youth committing crimes on tribal lands are tried in state courts and serve commitments in state adult or juvenile facilities. Tribal governments in PL 280 jurisdictions often have little to no input over the outcome of AI/AN criminal or juvenile cases occurring on tribal lands and/or the treatment of AI/AN people while they are confined in state jails or prisons. This makes it essential for tribal governments in PL 280 jurisdictions to have working relationships with staff at correctional facilities where AI/AN adults and juveniles are committed. Equally important, state correctional facility administrators and practitioners must have working knowledge of the cultural and other unique needs of AI/AN people while they are confined to support their transition back to their tribe. Specifically, correctional administrators should provide AI/AN people access to tribal spiritual advisors and healers, and allow observance of other culture-based ceremonies or activities that promote effective transitioning and healing. Correctional administrators should also know about, and make provisions for, tribal requirements to restore benefits, such as land assignments, housing, educational scholarships, health and other benefits or rights related to tribal citizenship. Q: Do tribes operate their own correctional facilities?A: Only a small percentage of tribes operate jails or other correctional facilities. The Indian Self-Determination Act (1975)** enabled tribes to build their own jails on tribal lands and to obtain funding from the Bureau of Indian Affairs (BIA) to manage and operate jails on tribal lands. In recent years, the Department of Justice has provided funding for tribes to build and/or renovate new jail facilities on tribal lands. Of the 565 tribes, only 80 operate jails or detention facilities. These tribal facilities held 2,176 AI/AN people, representing seven percent of the 29,400 AI/AN people confined in a facility in midyear 2009. The vast majority of AI/AN offenders were held in off-reservation jails (9,400, or 32 percent) or state correctional facilities (14,646, or 50 percent).3 Q: How is tribal court jurisdiction determined in Indian Country?A: Due to a number of historical factors, policies, and court decisions, tribes do not exclusively handle criminal and juvenile justice matters in Indian Country. The establishment of the Court of Indian Offenses and the passage of various federal laws limits the jurisdiction of tribal justice systems.* Recent amendments to PL 280 under section 221 of the 2010 Tribal Law and Order Act (TLOA) grants tribes the authority to call on federal officials if and when the state refuses to meet its obligations. This enables the U.S. Attorney General to accept concurrent jurisdiction to prosecute crimes under Title 18 of the U.S. Code §1152 and 1153. The purpose of this change is to address longstanding concerns that some states and local governments have not fully addressed reservation crime under PL 280. Adding to these structural and jurisdictional changes, the 1968 Indian Civil Rights Act placed limitations on the power and authority of tribal courts by limiting their sentencing powers.† Tribal court sentences were limited to one-year of confinement and/or up to a $5,000 fine (as amended in 1988). Passage of TLOA increases sentencing authority to up to three years of confinement for each charge and/or up to $15,000 in fines for crimes committed on tribal lands. As a result of this complex legal history, each of the 565 federally recognized Indian tribes exercise varying degrees of jurisdiction over criminal, juvenile, family, domestic relations, and other civil matters. Of the federally recognized tribes, approximately 275 have a tribal court, traditional court, Court of Indian Offenses (also known as Code of Federal Regulations (CFR) Court), or a combination thereof.4 The U.S. Bureau of Justice Statistics' (BJS's) 2002 Census of Tribal Justice Agencies in Indian Country found that of 314 participating tribes, 188 reported some form of a tribal justice system, 39 indicated use of an indigenous justice system,‡ 46 identified a CFR court, and 175 identified a tribal court.5 For more information about tribal courts and the roles judges play, see Kimberly A. Cobb and Tracy G. Mullins, Tribal Probation: An Overview for Tribal Court Judges (Lexington, KY: American Probation and Parole Authorities, 2010), http://www.appa-net.org/eweb/docs/appa/pubs/TPOTCJ.pdf. Q: Do tribes operate their own correctional facilities?A: According to the 2008 BJS report on tribal law enforcement in Indian country, tribes in at least 28 states operated 178 law enforcement agencies and the U.S. Department of Interior (DOI) Bureau of Indian Affairs (BIA) operated an additional 42 agencies.6 Tribal law enforcement agencies are supported either completely with tribal funds; with federal funds from the BIA through contracts, compacts, or direct services and/or U.S. Department of Justice (USDOJ) grants; or through arrangements with state or county law enforcement agencies.7 Federal law enforcement in Indian Country is targeted primarily on the enforcement of federal laws on tribal lands.§ The FBI or the BIA Criminal Investigator generally investigates federal cases that arise on Indian reservations. Cases are presented to the U.S. Attorney's office to determine if the case will be prosecuted as a federal crime. If the case is accepted, then the U.S. Attorney will seek an indictment or file a complaint. Fewer than 3,000 tribal and federal law enforcement officers patrol more than 56,000,000 acres of Indian country, which reflects less than half of the law enforcement presence in comparable rural communities nationwide. (Though PL 280 allowed the "mandatory states" to have complete responsibility for law enforcement on those reservations, tribal jurisdiction was not completely eliminated.)8 In recent years, there has been a movement towards reestablishing tribal law enforcement in five of the mandatory PL 280 states. For example, Minnesota's White Earth and Leech Lake tribes and certain tribes in California have established tribally operated law enforcement agencies to address the lack of state-provided law enforcement in their communities. Q: We're from a tribe interested in planning a reentry initiative. Where do we start?A: Tribal justice administrators should first gather the information they need to understand the scope of reentry issues in their community. This includes identifying the needs of AI/AN individuals returning from prison and jail, the community's concerns, and if any intergovernmental and/or interagency relationships are needed to support reentry. You can conduct these "needs assessments" by interviewing and/or surveying key stakeholders-such as returning AI/AN people, service providers, community members or tribal officials-or by conducting group talking circles. You should also inventory local resources to identify the strengths and gaps in services and resources in your tribal community. You can receive technical assistance for this planning and needs assessment process from government-funded technical assistance providers or nearby colleges and universities. These findings will be instrumental when designing culturally relevant programs and educating communities and external stakeholders and partners about the importance of a reentry initiative. |
* For a list of federally recognized Indian tribes, see http://www.indians.org/tribal-directory.html.
† For example, the 1978 Indian Child Welfare Act (25 U.S.C.§1903 (3), (4), and (8) and (25 U.S.C. §479a (2), (3)).
‡ 18 U.S.C. 1151 defines "Indian Country" as "(a) all Indian lands within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights -of-way running through the reservation, (b) all dependent Indian communities with the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same."
§ The Major Crimes Act's §1153 states: (a) 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, felony child abuse or neglect, 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.
** PL 93-628.
* For example, the Indian Country Crimes Act (18 U.S.C. § 1152; 1817), the Assimilative Crimes Act (30 STAT. 717; 1898), the Indians-Criminal Offenses and Civil Causes-State Jurisdiction (PL 83-280; 1953), and the Major Crimes Act (18 U.S.C. § 1153; 1885, Supp. 1986) authorized concurrent jurisdiction between Indian tribes and the federal government over numerous crimes. Public Law 83-280 (PL 280) subjected Indian tribes to state criminal jurisdiction in six "mandatory" states: California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska (upon statehood). The "optional" states, which elected to assume full or partial state jurisdiction, include Florida (I961), Idaho (1963, subject to tribal consent), Iowa (1967), Montana (1963), Nevada (1955), North Dakota (1963, subject to tribal consent), South Dakota (1957-61), Utah (1971), and Washington (1957-63). Some of these states have subsequently retroceded some or their entire PL 280 jurisdiction.
† Indian Civil Right Act 25 U.S.C. §§ 1301-03 and as amended by PL 111-211, Title II, the Tribal Law & Order Act of 2010, §234 (b).
‡ The term "indigenous justice system" refers to the use of customary laws, traditions, and approaches to address wrongdoing, crime and other types of conflicts by tribes, such as peacemaking, family gatherings, talking circles and other culture-based forums.
§ This includes crimes covered by the Indian Country Crimes Act (18 U.S.C. § 1152; 1817), the Assimilative Crimes Act (30 STAT. 717; 1898) and the Major Crimes Act (18 U.S.C. § 1153; 1885, Supp. 1986).