Criminalization of Indigenous women’s survival contributes to mass incarceration

This month, the Montana Innocence Project will seek to explain some of the reasons Indigenous peoples disproportionality make up our prison and jail populations with a series of stories published each week. Today’s story is about the criminalization of Indigenous women’s survival.

Nationwide, Indigenous women make up less than 1% of the population but comprise 2.5% of those held in prisons and jails. In Montana, Indigenous peoples make up only six percent of the state’s population, yet over 30 percent of the women’s prison inmates are Indigenous. The criminalization of survival is one issue that contributes to this disproportionate incarceration.

Native rights activist Laurie Little Dog said there are many social factors that create a situation in which Indigenous women are in survival mode at all times. Lack of access to employment, transportation, education, and stable childcare are just some of the factors that lead to behaviors that are criminalized.

“It will make anybody batty,” Little Dog said. “The energy investment comes with a price, and that price could be behaviors that you engage in to survive, and it really is isolating.”

Sex work is one of the criminalized behaviors that Indigenous women engage in to access resources they may otherwise not be able to.

“When we talk about survival and applying certain actions to get through the day, the week, or the season, we’re looking at conditioning from a pretty young age,” Little Dog said. “You’re conditioned that there’s a value from being sexually desirable as a means of survival. Whether that means marrying someone who has more land or stability or trading sex for resources.”

Little Dog provided the example of trading sexual acts for transportation.

“Transportation really is the key to success on the reservation and the key to thriving,” Little Dog said. “And a lot of people don’t have access to that whether it be gas, or a broken car, or no car, or having to sell your body to get a ride out, and hopefully you can come back with the same people you rode out with. It’s just very difficult.”

Another criminalized survival technique is substance use. It is often a response to what Little Dog describes as a “warped reality” many Indigenous women find themselves in trying to raise families in oppressed, isolated communities with scarce resources.

“There’s a lot of dabbling in things that you think is just going to be for a few months or one time, and it ends up being numbing enough that it becomes the addiction or the escape,” Little Dog said. “And sometimes that gets tied up in the court system, but then there’s no support to change that type of pattern. And the courts don’t want to hear it. They don’t want to hear why. They just want to stop the behavior and remove the behavior by putting it in a cage.” 

Sex work and substance use disorder are two survival techniques that assist women in meeting basic needs and coping with living in constant survival mode. But Indigenous women are also often criminalized for surviving in the literal sense—responding to violence.

“Criminalizing survivors of domestic violence, sexual abuse, and trafficking for doing what they need to do to survive is not justice,” the National Indigenous Women’s Resource Center said. “The justice system must instead provide women access to services and treatment that will allow them to escape the abuse-to-prison pipeline once and for all.”

A recent example of this is the case of Maddesyn George. In July 2020, Maddesyn, a 27-year-old mother and member of the Colville Confederated Tribes in Eastern Washington, shot and killed her rapist in self-defense. She called 911 immediately and was booked at the tribal jail and charged with homicide. After successfully arguing that she was defending herself, the tribe dropped the charges. But because homicide falls under the Major Crimes Act, the federal government also has jurisdiction to prosecute. The Department of Justice brought new charges against her. Maddesyn was held without bail for a year until she was sentenced last week to six and a half years in federal prison. 

“​​The prosecution stuck to its racist, sexist, anti-survivor arguments to the bitter end…,” reads a news release from Indian Country Today. 

There is a double standard in how the criminal legal system approaches Indigenous women when they are victims of violence compared to when they are forced to perpetrate violence to survive. Little Dog said this is evident in which cases make it to court. 

“Victimized women’s cases do not make it to the courtroom,” Little Dog said. “They’re dismissed. They’re unfounded. Whatever the prosecution will do to not have to follow through with a court case. And the reason for that is because they know how society devalues the female Indigenous body, and they know the likelihood of convicting a White man or even a Native man against a Native woman. They’re not going to get the conviction, and that’s what prosecutors are after. It’s a lost cause. We have so many women, and girls, and boys whose cases go unprosecuted because of that stigma within the greater society.”

The incarceration of Indigenous women has a unique consequence. Because most incarcerated women are moms, removing them from their home and the community can be more problematic than the behavior the woman was arrested or convicted for.

“There’s just not enough individuals that kids can access on the reservations that are safe and culturally appropriate to process what is happening with the criminal justice system and their mom,” Little Dog said. “And you have the bigger issue of dad’s gone. Mom will be gone for X amount of time. You want to keep them with the community, but there’s not a whole lot of consistent, safe families on the reservation for kids to go to. How do you really know that they’re in a safer situation than what you provide as a mom? And that’s such a huge legal backlog even for the tribal courts. Women do so much in and outside of the home for their kids that when that backbone is shattered, picking up those pieces is so impossible because there are so many other hands, and eyes, and hearts that have to get involved.”

Remediating the criminalization of Indigenous women’s survival strategies is a massive undertaking, but Little Dog said there are attainable actions you can take. You can share these women’s stories and call for more appropriate responses to their survival. 

“You hear these stories, and the punishment does not fit the crime because the punishment is impacting so many more lives than just the individual,” Little Dog said. “The extent of having a mother removed for a reason of helping her offspring survive it’s just unbelievable. You’d think that there would be some other way, but so far, their number one way is to throw away the key.”

Additionally, Little Dog advocates for resources to connect kids with their moms like funding phone calls and visits. Broadly, she encourages people to pay attention and move forward with their ideas to better the experience of incarcerated Indigenous women in Montana. 

“There are a lot of things that we can fund or support,” Little Dog said. “It’s always like, ‘Well someone ought to.’ Be that someone. If you have an idea, pitch it to the right foundations or whoever is holding the money bag.”