Tribal Justice

There are about 560 federally-recognized American Indian and Alaska Native tribes in the United States.  Many of these tribes operate their own jails.  According to the most recent data, at midyear 2004, an estimated 1,745 American Indians or Alaska Natives were being held in jails in Indian Country.  Many of these jails have severe crowding; in the most recent survey, 13 of 68 tribal jails were operating at over 150 percent of capacity at their peak, several of them at over 200 or 300 percent of capacity.  Thirteen tribal jails were under court order or consent decree to limit their populations.1  A 2004 assessment of jails in Indian Country identified several where inmates were sleeping on mats on the floor because the facility was holding two to three times its capacity.  That report painted a grim picture of tribal jails as being extremely unhealthy and unsafe facilities, a hazard to both inmates and staff. 2

The Bureau of Justice Assistance has been assisting tribes in developing tribal courts to handle lower-level criminal cases.3 The Bureau of Justice Statistics 2002 census of tribes showed that 56 percent operated tribal courts.  While felony cases are typically transferred to federal or state courts, about 85 percent of tribes with tribal courts retain jurisdiction over most misdemeanor crimes committed on tribal property.  BJA’s Tribal Courts Assistance Program (TCAP) provides funding for planning and implementation grants to tribal court systems.  Since FY 1999, BJA has awarded tribes over 300 grants totaling $40 million.  These grants have benefited not only the tribes by strengthening self-government, but also state and federal courts by relieving criminal dockets in those jurisdictions.4

As tribal justice systems continue efforts to improve conditions in tribal jails and expand their capacity to adjudicate criminal cases, they must also develop appropriate mechanisms for dealing with criminal defendants pending adjudication.  Tribal justice systems, like their counterparts in counties, must address the issue of how to assure the appearance of the accused in court and the safety of the community pending adjudication of the charges in a way that recognizes that a jail bed is a scarce and expensive resource – and reliance on jail for many defendants is often unnecessary and inappropriate.  Many jurisdictions successfully address this issue by assessing risks of danger to the community and failure to appear in court and matching those risks to the most appropriate options.  Those options form a continuum beginning with release on recognizance, moving to release with increasingly restrictive conditions, and ending with detention without bail. 

There has never been assistance to tribal justice leaders on how to address this issue.  But the need is great – at mid-year 2004, 42 percent of all inmates in tribal jails were awaiting adjudication of their charges – most of them on misdemeanor charges.  Given the crowded, unhealthy, and unsafe conditions in many tribal jails, efforts to develop effective pretrial release practices in tribal jurisdictions should ease the crowding problem experienced by many tribal jails, improve the conditions of confinement in tribal jails, and enhance the overall quality of justice. 

In 2007, the Bureau of Justice Assistance awarded a grant to PJI to provide directed technical assistance resources to tribes on the issue of poor conditions experienced in many tribal jails.  Our objective is to encourage tribes to implement pretrial release codes and practices that will reduce the pretrial detainee population in tribal jails.  We are working in three areas:  educating tribal leaders about the benefits of pretrial services; developing culturally-appropriate model tribal codes relating to pretrial release decision making; and developing culturally-appropriate program protocols. 

If you have questions or would like to explore having our technical assistance or training teams come to your tribal jurisdiction, call or email John Clark at 202-638-3080 extension 301 or john@pretrial.org.