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 barriers that lead to technical violations.
Indigenous peoples are not only overrepresented in the criminal legal system but they are disproportionately trapped in cycles of incarceration. There are many barriers relating to conditions of release on probation and parole that make it seemingly impossible for some Indigenous peoples to exit the system once they enter. We spoke with Native rights activist Laurie Little Dog about how technical violations contribute to the mass incarceration of Indigenous peoples in Montana.
Everyone who is released on probation or parole has to agree to conditions of release. There are typically about 30 rules that the person has to follow, and they can only be adjusted at the sentencing hearing. At first glance, these rules seem to promote safety and a healthy lifestyle. But if you look a little bit closer, many of the rules are arbitrary, nearly impossible to abide by, and in conflict with the lifestyles and cultures of many Indigenous peoples.
For example, most conditions of release prohibit possessing firearms and other equipment that may be used to hunt like crossbows. This is problematic for Indigenous people who engage in hunting as a cultural practice.
“What that does is it infringes on Native peoples’ treaty rights,” Little Dog said. “You have the right to sovereignty. And you have treaty rights that are protected. Since when can the state say, ‘You can’t provide for your family in a traditional way by hunting elk. You are banned from that practice.’”
Another common condition of release is that you cannot be on the premises of a casino. You cannot be there for recreation, but you also cannot work there. This is specifically concerning for someone living in an Indigenous community where a casino may be one of the largest employers.
“If you are required to get a job, and your only option is to work at the casino, but you’re banned from the casino because the state says it will be a violation of your parole, we run into a huge conflict,” Little Dog said.
Also, as a parolee or someone sentenced to probation, you typically cannot knowingly associate with other people who are convicted felons.
“Due to the high rate of convictions of Native people, you will have in the same household multiple felons who are literally family members,” Little Dog said. “How are you supposed to not live in the same household when you have multi-generations living in one home?”
Even if you have an emergency, you cannot stay with your family if there is a convicted felon in the home. And if your probation sentence is, for example, 20 years, these rules apply to you for the entire 20 years.
Another difficult barrier to overcome is when you live on a reservation but your probation or parole officer’s office is off the reservation. With a lack of public transportation, access to a working vehicle and gas money, and Montana’s winter weather conditions, there often are no transportation options for some people to make their check-ins.
“You’re at the mercy of so many different compounded barriers that even if you want to do everything by the book and really do well with your parole, there are other forces of nature, poverty, or politics that prohibit you from meeting those demands,” Little Dog said.
The result of these strict conditions is a cycle of incarceration. Having your probation or parole revoked often means incarceration. And if it is revoked multiple times, it can lead to extremely long prison sentences. This directly contributes to the mass incarceration of Indigenous peoples in Montana.
“It feels beyond unethical,” Little Dog said. “It really does feel like they’re tightening the noose, and even when you’re trying your damndest, there’s really not an avenue to seek release. … And it’s not a self-defeating prophecy. It’s a state-defeating prophecy that you’re going to be turned back into the system. So you try, try try to do your best, and it’s still not going to be good enough. It’s easier to just go back to prison.”
Little Dog describes it as a “jigsaw puzzle.”
“There are so many layers that you have to navigate simultaneously,” Little Dog said. “When there are so many rules, and you are forced to live in a way that is not protecting you from committing a new crime, it does give people so much stress because the average free person does not live this way.”
Little Dog suggests many remedies to address this complex issue. First and foremost, having an understanding of what conditions violate Indigenous peoples’ treaty rights. Another is making the conditions of release appropriate for the crime. For example, if someone is not a violent offender, then they should not have the condition that they cannot possess firearms. Also, a remedy could be giving incarcerated people who work a livable wage so they can begin paying off restitution to relieve some of the financial stress they will experience upon release. Finally, Little Dog suggests that businesses in Montana hire formerly incarcerated people. And, more generally, she encourages everyone to treat returning citizens as people instead of being afraid.
Little Dog said that a remedy that anyone can contribute to is meaningfully researching how we sentence people in Montana. The next judge election is four years away, but you can still pay attention and speak up when you witness injustice.
“The tough-on-crime people…on the surface, you want to live in a safe community, but really look at what the sentencing looks like coming out of certain counties with certain judges,” Little Dog said. “Helping to challenge what they call the sentencing guidelines. The sentencing does not fit the crime. It may feel good to have vindication over a criminal and to throw away the key. But really, we are paying for that person to be over-monitored. It is so expensive. It is so immoral. And it is going to return people back to communities who are so much more broken and just damaged irreversibly to the point where they can’t successfully assimilate into society.”