One hot afternoon in September 2016, Ramah Navajo tribe member Tracey Beaver and three friends set off on an hour-long drive from Pinehill, New Mexico to the town of Grants to buy alcohol. On the return drive, Beaver lost control of his pick-up truck and struck an embankment. Two of his passengers - sisters - were thrown onto the road and killed. The girls’ mother was one of the emergency medical technicians who first responded to the accident.
Police tested Beaver’s blood alcohol level, found it was twice the legal limit and charged him with involuntary manslaughter. Because the federal government has jurisdiction over certain serious crimes in Indian Country, his case was heard in a federal court, rather than a state or tribal one.
Beaver, who had a long history of alcohol abuse and driving offenses, is now serving a 10-year prison sentence; but, Brian Pori, the New Mexico federal public defender who represented him, argues that if he had been tried in a state court, he would likely have been charged with a fourth-degree felony and received a sentence of only three years in prison.
“The facts of the case are just chilling and heartbreaking,” said Pori. “But the context for it is that Mr. Beaver pled guilty to involuntary manslaughter. Under the United States' sentencing guidelines, he was facing a sentence of about five years. The judge doubled that sentence because of the facts of the case. And this is something that happens over and over throughout the U.S.”
The numbers aren’t surprising for many Native Americans, who say they are routinely targeted by police.
It's especially easy in South Dakota, said Shane Boudreaux, a Lakota tribe member from the Rosebud Indian Reservation. Each county in the state has its own vehicle license plate prefix number, he explained. For example, 67 for Todd County, 65 for Oglala Lakota County. Both counties lie entirely inside Indian reservations, where poverty runs high and drivers may not have valid driver’s licenses, vehicle registrations or auto insurance.
“So if a police officer wants to pull over a Native, all he has to do is look at the license plate and say, ‘Oh, a 67 plate! Oh, look: They have an eagle feather hanging from the mirror! That could obstruct their view, so it’s a citable offense!’ And then the police pull them over and say, ‘Hmm, I smell marijuana,’ or 'Have you boys been drinking?'"
If arrested and charged, Boudreaux said, many tribal members cannot afford to hire lawyers, so they must rely on public defender systems which are notoriously underfunded and overworked.
“If you have five cases, that’s a full-time job,” said Boudreaux, who has been through the federal court system himself on more than one occasion. “But if you have a hundred, you’re going to be doing a lot of plea dealing - ‘Just plead guilty and we’ll get you thus and thus sentence.’ So you have these Natives that plead guilty to felonies, when if they had adequate counsel, they could get the charges down to a misdemeanor.”
Further, differences in the ways juries are selected in tribal, state and federal courts mean a Native American charged in federal court is more likely to face a jury of non-Natives, whose verdicts could be driven by racial prejudice.
“This is a backwater subject in criminology,” said Jeffrey Ian Ross, a University of Baltimore criminologist and expert on Native Americans in the criminal justice system. “Very few people have studied this sort of thing.”
Earlier this year, the U.S. Justice Department’s Bureau of Justice Statistics (BJS) reported on the numbers of NA/ANs in local jails from 1999 to 2014: In mid-2014, about 10,400 NA/ANs were in jail, almost twice as many as those in jail 15 years earlier. And it found the numbers increased every year at a steady rate of about 4.3 percent.
“The American Indian population in the jail has doubled, but the actual residential population hasn’t grown in the same way,” said BJS statistician Todd Minton, who authored the report. “What that means is that American Indians are more likely to be incarcerated.”
Native American youths are 30 percent more likely than white youths to be referred to juvenile courts than have charges dropped, according to the National Council on Crime and Delinquency. And they are 10 percent more likely to be held in jail than released while awaiting trial.
The Campaign for Youth Justice says that even though Native youth make up only one percent of the total U.S. youth population, 70 percent of young people committed to the Federal Bureau of Prisons as delinquents are Native American, as are a third of youth committed to the BOP as adults.
Spurred by these concerns, the U.S. Sentencing Commission, an independent federal agency, asked a federal panel in 2015 to look into claims that Native Americans face disproportionately harsh prison sentences. In its final report of May 2016, the Tribal Issues Advisory Group concluded there isn’t enough data to prove or disprove the claims and recommended the commission set up a mechanism to collect better data. It also urged the commission to support efforts by Congress to motivate states to collect better data specific to Native Americans.
This wasn’t the first time the commission looked at the problem, said New Mexico lawyer Pori.
“They’ve done this for the past 20 years and have found over and over again, ‘Yes, the sentences appear to be more severe, but we don’t know how much because we don’t have good enough comparison data,’” he said, paraphrasing study conclusions.
“Well, to me, that’s no real response at all,” he added. “If people are being sentenced for twice as long as the sentence they would face for a similar crime in state court — and the only reason that they’re facing that doubled sentence is because they are Native American — then that needs to be corrected. Sooner rather than later.”