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This month, the Montana Innocence Project will seek to explain some of the reasons Indidisproportionality make up our prison and jail populations with a series of stories published each week. Today’s story is about jurisdictional complexities. 

At any given time, federal, state, local, and/or tribal criminal justice systems could have jurisdiction over an Indigenous person. This is dependent on the type of crime, where the crime was committed, tribal enrollment status of the offender and victim, and other details of the offense. Consequently, Indigenous peoples face multiple entry points into the criminal legal system. We spoke with the ACLU of Montana’s Indigenous Justice Program Manager, Sharen Kickingwoman, about how the complexities of jurisdiction play a role in the disproportionate incarceration of Indigenous peoples in Montana. 

“I think it’s confusing and sometimes intentionally confusing,” Kickingwoman said. “Sometimes you have reservations that border national parks like the Blackfeet Reservation. So you have people coming into contact with the parks service…another jurisdiction. Or you have folks like me who live off tribal land in the city. And so the way we are policed are in those jurisdictions. There is a lot of confusion about who is responsible when something happens.”

The rules about jurisdiction vary from tribe to tribe. For example, the Flathead Indian Reservation has Public Law 280, which means that the state is able to police the reservation in addition to tribal law enforcement. Conversely, the Crow Reservation, Montana’s largest reservation, has only a handful of police officers responsible for the entire community. 

“As a result of all these systems overlapping, you see a lot of the consequences like people being overrepresented in the criminal justice system, or Indigenous folks being incarcerated at higher rates, or murdered and missing Indigenous women falling through the cracks,” Kickingwoman said. “Those are all symptoms of the system and consequences of how the system has been designed.”

A recent case that exemplifies this jurisdictional barrier is Jermain Charlo who went missing in Missoula in 2019. The confusion, even among law enforcement agencies themselves, about who was responsible for the investigation greatly impacted the trajectory of the case. This caused it to bounce between Missoula and the tribal police on the Flathead Reservation for days. 

“You have someone like Jermain who still is not found, and it’s because of a literal jurisdictional maze where the case wasn’t picked up or taken seriously for far too long at a really critical time,” Kickingwoman said. 

For those who have been arrested, overlapping jurisdictions perpetuate disproportionate incarceration by creating numerous entry points into the system. This is especially harmful to a community that is already over-policed and over-criminalized (See our story on that topic here). 

“Running into law enforcement at any point of your life and falling into this jurisdictional maze contributes to the over-incarceration rates that we see,” Kickingwoman said. “And you talk about tribal lands having more of a police presence, that really increases a person’s likelihood of being ensnared in that system.”

One of the most harmful entry points is in schools. The Indigenous Justice Program at the ACLU of Montana, which Kickingwoman leads, collected data in 2019 about how students are disciplined in Montana schools and which students come into contact with law enforcement most.

“Across the board, Native students were the most impacted group,” Kickingwoman said. “They were disproportionately pushed out of classrooms. They were disproportionately referred to law enforcement. Disproportionately arrested by law enforcement for things that were happening in the school halls. One girl was suspended multiple times for opening her crackers too loud. I mean, things got really out of hand in some of these schools.”

Kickingwoman said the finding from their research that “gives her goosebumps” is that the number of Indigenous students being referred to law enforcement mirrors the number of Indigenous peoples in Montana’s prisons. 

“When we look at the data on a more systems-level, you really see how students can be pushed out of the classroom and how those touchpoints with an officer and the presence of having an officer in a school really sets somebody’s life up for continued contact with the justice system and to be incarcerated later,” Kickingwoman said. “So to see that basically persist over time, I think speaks volumes and is just really telling.”

Kickingwoman suggests remedying this problem by eliminating some of the entry points for Indigenous peoples—starting with schools. 

“We should not have police in schools,” Kickingwoman said. “They are not productive. They are not helpful. And that reduces the overall touchpoint for a young person to come into contact with law enforcement—at least in their school.”

Instead of referring students to a police officer, Kickingwoman suggests referring them to a counselor or social worker. 

She also identified a need for enhanced resources to address the broad issue of Indigenous peoples overrepresentation in the criminal legal system. 

“How do we get people on their feet and give them baseline resources to live a good and stable life? A lot of that is housing, having a good job, having access to treatment, having access to mental health resources,” Kickingwoman said. “These are huge holes and gaps where our services aren’t holistic. They’re just punitive. Folks fall through the cracks in those ways and also jurisdictionally.”

Finally, Kickingwoman advocates for more opportunities for Indigenous peoples to connect with resilience factors. 

“Letting people develop a sense of their identity and their culture and really learn who they are to enhance these positive factors,” Kickingwoman said. 

For those who want to learn more about Indigenous justice issues and want to improve their individual advocacy work, Kickingwoman suggests reading about the history that created these issues with the goal of diversifying your perspectives. 

“Just the other night on the news, it was like, ‘Native communities impacted most by Covid-19,’” Kickingwoman said. “And I feel like the easiest takeaway if I was a non-Native person would be like, ‘Oh, why are they getting Covid so much?’ Or, ‘They’re in jail because they commit the most crimes.’ Those are the easy jump points, but you really have to dig in. There’s this history. You really have to go back and look at how these things came to be. That can be a huge learning curve for many people who when they drive to Flathead Lake don’t know they’re on a reservation. I think it’s really learning about other people. Bringing those perspectives into your life. Looking behind stats to understand socially what is happening. And reading about it.”