Many of us already know the difficulties caused by systemic inequity’s impacts on reservation communities: a lack of basic utilities, crumbling or underdeveloped infrastructure, voter disenfranchisement. Now, the current moment is highlighting another difficulty: the criminal justice system’s disproportionate impact on Indigenous peoples.
The Black Lives Matter demonstrations across the country are drawing attention to injustices in the American criminal justice system. Native American communities know these injustices too well. Of all Americans, Native men are statistically the most likely to die at the hands of police. As a public defender for the Hopi Tribe, I saw the increased prosecution of domestic violence crimes and the development of restorative options for drug and alcohol offenders touted as progressive reforms. But we also need to talk about cash bail and its harmful effects on Native communities.
Courts across the country have already begun to abolish cash bail for nonviolent offenses. Similar reform is warranted in Indian Country, where cash bail disproportionately impacts Native defendants, who are less likely to have access to the money to pay their bail amounts, and who are subject to prosecution in both federal and tribal courts. Many tribes have established their own criminal courts; states lack jurisdiction over (most) offenses committed in Indian Country, while the federal government — which enjoys concurrent jurisdiction — does not always pursue charges, even when warranted. Ideally, tribal lawmaking bodies would enact legislation ending cash bail — or at least significantly reducing the number of crimes that warrant it. But other parties involved in the tribal court process also have an opportunity to play a role in sparking reform. Tribal court judges could refrain from ordering bail, and tribal court prosecutors could refrain from requesting it. As criminal justice reformists grow in numbers and expand across party lines, cash bail’s days are numbered. Tribes have an opportunity to not just join in this growing movement but to help lead it, as well.
Despite the diversity of tribal nations, few tribal courts employ criminal justice systems that embody their communities’ own beliefs. Tribal courts are based on Anglo-oriented justice models, and most tribal criminal codes reflect those of neighboring states. Non-Native judges, prosecutors and defense attorneys handle most criminal cases in tribal courts, and the vast majority of them require cash bail. The idea of bail has existed since medieval times and is even referenced in the U.S. Declaration of Independence. These days, bail has proven especially problematic for Native defendants, partly due to the longstanding policy of federal ownership of tribal lands. While a cash-poor defendant is generally able to use real estate as a secured bond to make bail, tribal court defendants who live on land owned by the U.S. government lose access to this option. Systemic inequities have also led to widespread poverty and limited access to transportation, both of which contribute significantly to bail’s negative impact on reservation communities.
I’ve seen firsthand how the ability (or inability) to pay bail determines the course of a defendant’s criminal case. One of my former clients, a woman my age, was charged with possession of marijuana and couldn’t afford her $50 bail. Neither could anyone in her family, so she was forced to sit in jail for weeks, waiting for a plea offer from the prosecution. When that offer finally came, she pleaded guilty, received credit for time served, and was finally able to move on with her life. Yet due to her extended absence, she lost her job and found herself facing a family services investigation. Meanwhile, clients who can pay their bail approach their cases from a much stronger negotiating position. It’s much easier to reject plea offers and fight for justice and understanding when defendants are free, working and spending time at home with their families.
It’s much easier to reject plea offers and fight for justice and understanding when defendants are free, working and spending time at home with their families.
The notion that cash bail is necessary to ensure that tribal court defendants return to court rather than skip town loses merit when you consider the demographics of Native communities, most of which are small and close-knit. Oftentimes, tribal court employees — including judges — know defendants personally; perhaps they went to high school together, are distantly related or share mutual friends. Tribal police often know where defendants live and can easily retrieve them when they fail to appear. This small-town atmosphere makes it difficult for defendants who have been released, whether on their own recognizance or by posting bail, to successfully avoid appearing in court.
Similarly, since tribal courts have limited sentencing powers, defendants seldom face the types of charges that might encourage someone to flee. There simply is no real need for tribal courts to impose cash bail on the vast majority of their defendants.
As bail reform continues to spread across the country, Indian tribes have an opportunity to do away with an unjust practice — one that European colonizers brought to this country — and to eliminate one of the most unfair elements of the Anglo criminal justice system and replace it with a more culturally appropriate approach.
Michael Daugherty is a former staff attorney at DNA-People’s Legal Services, Inc., where he worked as a public defender for the Hopi Tribe. Email High Country News at editor@hcn.org or submit a letter to the editor.
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