Over-policing, over-criminalization contributes to disproportionate incarceration of Indigenous peoples

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 over-policing and over-criminalization.

Indigenous peoples are overrepresented in jails and prisons. Nationally, from 2000-2019, the population of Indigenous peoples in jails increased 85 percent. In Montana, Indigenous peoples make up only six percent of the state’s population but over 30 percent of the women’s prison population and over 20 percent of the men’s prison population. 

There are many reasons Indigenous peoples are arrested and convicted at higher rates than other racial groups, but the broad, overarching explanation is that they are over-policed and over-criminalized through a process motivated by colonialism and mass incarceration. We spoke with ACLU of Montana Policy Director, Keegan Medrano, about how this process happens and what the implications are in Indigenous communities.  

Medrano said that to understand the experience of coming into contact with law enforcement, you must understand the role of police in our society. Police departments are tasked with maintaining social order, but they often do this in a context that only serves the needs of those in power.

“That social order is framed around private property, around the concentration of wealth, and the protection of the societal structures that maintain and celebrate capitalism,” Medrano said. “So when we talk about the over-policing of our communities, we are talking about how our existence and the fact that we are alive is both an affront to that system and frequently causing tension with that system.”

Indigenous peoples are policed in more ways than one. In addition to being supervised by law enforcement, their existence has been closely policed since the beginning of colonization. 

“We’re policed based on our ‘blood quantum,’ which of course is the colonial construction of our ancestors and our relationship to our ancestors,” Medrano, who is Mvskoke, said. “We’re policed in the sense that we have reservations, and so it’s difficult to understand our existence without it understood through the lens of being policed in the sense of both the actual institution of policing…but also our very existence is policed by the federal, state, and local governments.”

What this looks like in practice is law enforcement patrolling spaces with heavy Indigenous presences and criminalizing behaviors they are forced to engage in to survive.

“We know that substance use is policed and criminalized in our society; we know that homelessness is; we know that poverty is,” Medrano said. “Because our communities are disproportionately represented in those spaces that are criminalized and policed, we see ourselves coming into contact with the police. You can’t talk about our relationship to the police state without understanding how our communities have persisted through the attempts of settler colonialism to kill us off, both our bodies and also our culture and ways of knowledge.”

The behaviors that Medrano identified—having substance use disorder, being homeless, and experiencing poverty—are seen more in Indigenous communities because they are surviving through the effects of colonization. For example, housing instability should be considered a consequence of colonization because, historically, Indigenous peoples were forcibly removed from their homes, and currently, barriers like housing discrimination and lack of access to education, jobs, and resources allow the issue to persist. In essence, colonialism created the conditions in which Indigenous peoples’ lives are harder and then criminalized their survival mechanisms. 

Over-criminalizing and over-policing start as early as adolescence. In Montana, many Indigenous students will encounter an armed police officer and be introduced to systems of punishment at a young age. Medrano said many Indigenous peoples begin to conceptualize their contentious relationship with the institution of policing in schools, and this sets the stage for how they see themselves interacting with this institution for the rest of their lives. 

“Unfortunately, for so many of our younger folks, their experience throughout life and throughout school, where they are supposed to be learning and growing, and becoming who they are, they are being asked to do that while also coming into contact with police—police who have an understanding of Indigenous peoples in a particular and almost always racist lens,” Medrano said. 

Indigenous students are disproportionately punished in Montana schools. A 2019 report from the ACLU of Montana found that Indigenous students lost nearly six times the rate of instruction and were arrested more than six times as often as their White peers. This is often referred to as the pre-school to prison pipeline: a national trend of students being funneled from school directly into the criminal legal system due to things like a heavier presence of school resource officers in schools with more racial diversity and the criminalization of behaviors that should be addressed by support staff and social workers.

“We deny Indigenous students the opportunity to access those spaces at the same time we’re policing them,” Medrano said. “And then we criminalize behaviors that stem from sometimes that lack of opportunity or lack of becoming the individual that you actually want to become. … We are forcing our folks through these systems which ultimately harm them.” 

It is easy to see how colonization is a motivation behind the over-policing and over-criminalization of Indigenous peoples. Incarcerating people is the ultimate practice of control, and even when Indigenous people are able to exit the criminal legal system, Medrano said they are set up to fail. 

“Our carceral centers in this country are not set up to heal trauma or set people up for success,” Medrano said. “Instead, they are spaces of punishment and cruelty. … People are pushed through these awful carceral centers, they exit these carceral centers, which did nothing to heal them, nothing to restore them, nothing to give them skills. And then they are set out into the world without any housing programs, any substance use programs, any jobs programs, education programs, or anything like that really.”

The implication of this is a cycle of trauma and incarceration. While Indigenous communities are stronger and more capable of supporting one another than most, the effects of their mass incarceration cannot be ignored. 

“If you’re in and out of a carceral system, if you’re in and out of incarceration, if you’re trying to confront substance use, then you aren’t able to be present and supportive of other individuals,” Medrano said. “That trauma perpetuates itself and then that gets mapped onto the next generation. And then the next generation tries to persist through that but then sometimes they’ll manifest that as well.” 

And in most Indigenous communities, incarcerating even a single person has widespread emotional implications. 

“We don’t have things like second cousins or step-this or things like that,” Medrano said. “Folks within our family units are cousins, are sisters, are kin. So we feel that harm in a way that’s difficult to translate into family structures that only see patrilineage or blood relation. So our trauma is so dispersed.”

Medrano said one of the motivations behind the mass incarceration of Indigenous peoples is to enact modern-day genocide. Incarcerating massive portions of Indigenous communities is not the same as killing them, but Medrano argues that it has the same result as what we traditionally view genocide as.

“It’s not palatable, frankly, anymore to commit genocide on a wide scale in our modern world,” Medrano said. “Genocides still occur, but the West cannot commit genocides anymore against its own people. So it has to create these ways to ensnare our populations and commit that violence in a different way. It has similar outcomes, but it functions in a very different way.”

Another motivation behind the mass incarceration of Indigenous peoples is to bolster the system. Medrano said criminalizing Indigenous peoples and other minoritized racial and ethnic groups creates a symbol.

“What I mean by that is by taking populations and criminalizing certain behaviors or reading their behaviors as things that should be criminalized … we create a tool for society to be like, ‘Oh, look, those people over there are dangerous, and they’re bad,'” Medrano said. “‘I don’t want to be like that, so I need to follow rules, and just go along with the system.’ So it supports the system.”

One remedy Medrano suggests is to decriminalize many behaviors. Medrano argues that 90 percent of what police respond to does not need to be policed. Whether it is homelessness or substance use disorder, Medrano said we need to alter the way we view certain behaviors and respond to crises. 

“We need programs to uplift and empower folks to feel like they can heal,” Medrano said. “I strongly believe that the violence we enact on each other, whether they are micro-aggressions, whether they are interpersonal, or whether they are more aggressive or egregious, are things that come from places of trauma, places of hurt, and places of need. … We need to create programs to uplift, celebrate, and empower folks.”

But the remedy Medrano describes as more authentic and that would lead to more largescale improvements is Land Back. This is an effort to return land to Indigenous peoples—an idea that is often met with fear. 

“It is a scary concept for a lot of folks in the sense that people think Indians are going to come down off the hills and seize private property, kick me back to Europe, and they’re going to own everything,” Medrano said. “That is not what Land Back is.”

Medrano said it is truly about the way you relate to land, and addressing inequity in the criminal legal system would be a result of shifted perspectives about how to interact with the world and each other. 

“The way that you see mountains, the way that you see water, the way that you see the animals that move through this space and time,” Medrano said. “Through that changing of relationship, you’ll be able to build a more true and authentic, and more stable world. And I don’t mean stable in the social order way. I mean stable as in you’ll be at harmony, and you’ll be at peace.”

Below are three action steps you can do today to address the over-criminalization and over-policing of Indigenous peoples:

  1. Listen.

“The moment you start to listen is when you start to learn all these things,” Medrano said. “Find those groups and spaces that are talking about transitioning land and empowering Indigenous folks in the long term.”

  1. Vote.

“If you believe in the electoral system, if you believe in politics, then it’s voting for individuals who speak about these issues and give space and time to Indigenous folks,” Medrano said. 

  1. Empower and uplift.

“If you are on social media, you will see Indigenous folks sharing their experiences, sharing their stories, and you can support them financially,” Medrano said. “You can uplift and buy their art. There are ways to support and uplift folks.”