Punishment in Indian Country: Ironies of Federal Punishment of Native Americans

Abstract

Native Americans are US citizens, but they are also tribal nationals subject to complex and unique criminal jurisdiction arrangements over Indian lands. Tribal nations typically have tribal court jurisdiction over less serious crimes, but for serious crimes the federal justice system often supersedes tribal authority, exposing Native Americans to more severe punishments. In addition, recent federal programs have attempted to foster greater tribal/federal criminal justice coupling. Yet, examinations of criminal punishment of Native Americans are few, and most are outdated and/or of very limited generalizability. We examine the punishment of Native American defendants in federal court, focusing on 28 federal districts with substantial Indian presence. Using recent US Sentencing Commission data, as well as contextual data from the Bureau of Indian Affairs and tribal courts, we focus on differences in the federal sentencing of Native American defendants, and how these differences are conditioned by indicators of tribal-federal criminal justice coupling.

Keywords:

• sentencing
• federal courts
• native Americans
• sentencing guidelines

Notes

¹ Indian country is legally defined as encompassing “(1) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, (2) all dependent Indian communities within the … United States, and (3) all Indian allotments [where] the Indian title to the allotment still exists” (Droske, 2008, pp. 728–729).

² Tribal courts hold exclusive criminal jurisdiction over crimes (mostly misdemeanors) committed by Indians against Indians that are not covered by the Major Crimes Act (Droske, 2008; see also http://www.law.cornell.edu/cfr/text/25/11.315).

³ “Indeed, the majority of federal prosecutions for offenses such as assault, manslaughter, and certain sex offenses are against Native Americans” (Droske, 2008, p. 733; see also USSC, 2013).

⁴ Compared to the very small number of studies on Native American sentencing in the US, relatively more studies exist of sentencing disparities affecting indigenous/First Nations peoples in Canada and Australia/New Zealand (Jeffries & Bond, 2012; Lockwood et al., 2015). These studies show mixed results (Jeffries & Bond, 2012).

⁵ Native Americans defendants in the data are almost all US citizens. More importantly, and the conceptual issues surrounding Indians’ status as both US citizens and also members of domestic sovereign nations form a unique citizenship situation, and there would seem to be no clear analogy relative to defendants who are citizens of other nations. We therefore believe that the most appropriate conceptual comparisons for this analysis are between Native American defendants and other types of defendants who are US citizens. Supplemental models that include non-US citizens in the data produce substantively similar results as those we present here.

⁶ These 28 districts are included: Alaska, Arizona, Colorado, Idaho, Iowa North, Michigan West, Minnesota, Montana, Mississippi South, Nebraska, New Mexico, New York East, New York North, New York West, North Carolina East, North Carolina West, North Dakota, Oklahoma East, Oklahoma North, Oklahoma West, Oregon, South Dakota, Texas West, Utah, Washington East, Washington West, Wisconsin East, and Wyoming.

⁷ The formula for converting b-coefficients of logged sentence length to % difference is ((Exp(b)) − 1) * 100 for positive coefficients and −1((1/Exp(b)) − 1) * 100 for negative coefficients (see Kurlychek & Johnson, 2004).

⁸ This includes a small number of Alaskan Natives (all of which in the Alaska district), as the USSC does not distinguish this group of defendants from Native Americans. We recognize that Alaskan Natives have a somewhat different political and cultural history, and a qualitatively different relationship with the federal government, than Native Americans in the lower 48 states.

⁹ Supplemental models incorporated “other” race categories. As expected, the effect of this change was trivial. For example, in the model predicting logged sentence length, the Native American x Fed280 interaction effect was .183, with SE = .02 (vs. b = .188, with SE = .03 in the model presented).

¹⁰ The correlation between these two measures is .53, suggesting that they are related, but distinct variables.

¹¹ A handful of tribes within some states are not encompassed by PL 280: for example, the Red Lake Band of Chippewa Indians in Minnesota and the Confederated Tribes of Warm Springs in Oregon.

¹² In supplemental models of imprisonment and length, we also controlled separately for whether defendants received a mandatory minimum sentence (we did not control for mandatory minimums in models of departures, since mandatory minimums preclude the possibility of downward departures except for cases receiving the safety valve provision, which are rare in these data). The results of interest do not differ substantively from those we present in our main analyses. Notably, Native Americans receive mandatory minimums at much lower rates than other defendants: 8% of Native Americans receive mandatory minimums in our data, whereas 18% of all other types of defendants do.

¹³ A constant of .1 is added to all zero values for the presumptive sentence variable but not the sentence length dependent variable, because we want to retain those cases where an offender’s presumptive sentence was 0 months but s/he still received a prison sentence.

¹⁴ The inclusion of criminal history did not result in problematic collinearity with the presumptive sentence measure (the correlation between logged Guideline minimum and criminal history is .37). Our results regarding Native American defendants are substantively similar in models not controlling for criminal history.

¹⁵ Whether or not analyses of sentencing length outcomes requires controlling for a selection bias for the incarceration decision is a contentious issue in sentencing literature (Bushway, Johnson, & Slocum, 2007). However, the potential for selection bias based on incarceration decision is less problematic for our current models, as over 82% of defendants in the sample are sent to prison. Nevertheless, to ensure the robustness of our prison length findings, we attempted to run our length models both with and without a Heckman two-step correction. We attempted to find exclusion restrictions and estimate an incarceration (selection) model that was substantively different from the sentence length model (this selection model was also more parsimonious than the in/out model presented). This was difficult, since most of the variables predicting imprisonment also predict length, though the size of the effects are often different. The results from the selection-corrected models are not meaningfully different than the ones we present for our coefficients of interest, but these corrected models are much more suspect due to collinearity introduced by the correction procedure. Another option would be to treat incarceration/length as an overall sentencing severity variable subject to left-censoring, and use tobit regression. However, this would prevent us from addressing our central research questions, since tobit is not available in Hierarchical modeling in either HLM or Stata.

¹⁶ Maas and Hox (2005) suggest that among models with approximately 30 groupings, the standard errors may be underestimated by about 15%. Therefore, in supplemental analyses, we recalculated significance after increasing standard errors by 15%. Results did not differ from those presented here.

¹⁷ Jurisdiction overall caseload size did not significantly affect defendants’ likelihood of imprisonment, but was inversely related to sentence lengths. Because of the need for parsimony due to the small number of districts, and because the inclusion of caseload did not substantively affect the finding for the Indian-related contextual variables, we omitted it from our final models.

¹⁸ This measure of Native American local jail inmates might be considered an indirect indicator of Native American criminal activity, since the number of Native American jail inmates would reasonably expected to be correlated with the number of local crimes involving Native American defendants. The fact that the effects for Native American federal caseload share are robust in the face of this Indian jail inmate measure lends support to the idea that the federal caseload share variable partially captures federal justice involvement in Indian Country crime, and not merely the amount of Indian crime per se.

¹⁹ In one district, Native Americans make up 48% of defendants, but this district only has the eighth largest Native American population. In this particular district, Native Americans have 2.4 odds of imprisonment (compared to whites), .37 odds of substantial assistance departures, and .49 odds of government sponsored departures. Our findings hold up when this district is removed from the data; the effects become smaller, but remain significant.

Additional information

Notes on contributors

Jeffery T. Ulmer

Jeffery T. Ulmer is professor of Sociology and Criminology at the Pennsylvania State University. His research interests include inequalities in criminal punishment and how social contexts shape criminal justice, as well as criminological theory and religion and crime.

Mindy S. Bradley

Mindy S. Bradley is professor of Sociology and Criminal Justice at the University of Arkansas. Her research interests include criminal sentencing, hate and bias crimes, relationships and violence, and sex work.