CRIMINALIZING THE RESERVATION
This section will discuss the criminalization of Native Peoples in the historical context of U.S. colonialism.
The U.S. criminal justice system's intersection with Native peoples is a revealing case study in systematic human rights violations and opposition to self-determination. In addition to being disproportionately overrepresented in the criminal justice system, Native peoples have long faced the criminalization of their identities, culture and traditions; and the U.S. legal system has institutionalized Native criminality.
The imposition of the U.S. criminal justice system on Native reservations has resulted in a complex maze of overlapping tribal, federal, state, and local jurisdictions. Although tribal justice systems predate federal ones, they are viable only if a sovereign tribal entity exists that governs its people, enforces its own laws, and has relations with other similar political/legal entities. Native peoples have negotiated with the U.S. government primarily through treaties (similar to treaties the U.S. government signs with foreign nations) that helped define "Indian Country," the idea that American Indians have jurisdiction over their own affairs. Sovereignty is a controversial issue in the Native community, in part because U.S. intervention has diminished the reality of tribal sovereignty over time, and different opinions exist about how to respond to these changes and challenges.
Opposition to sovereignty and self-determination on the part of non-Natives is rooted in racism, White supremacy and the stereotype of Native people as "savages" who relentlessly disobey U.S. law. As Native peoples resisted, sometimes violently, the expansion of the United States into their territories, the image of Natives as uncivilized outlaws took hold in the American consciousness. In the face of this resistance, attempts to control Native peoples escalated, state and federal governments and agencies enforced laws that criminalized behavior from performing traditional dances and engaging in religious activities to violating liquor laws and vagrancy.
While the opposition and challenge to Native sovereignty is not restricted to the U.S. Political Right-the U.S. State, regardless of whether liberals or conservatives are in power, has systematically eroded Native sovereignty from its very creation-various right-wing sectors have been at the forefront of the assault on Native peoples' rights. Whether it is White supremacist and racist groups belonging to the Xenophobic Right such as the Aryan Nation or racist elements within the Militia Movement, the anti-environmental Wise Use Movement sponsored by corporate mining and ranching interests that is part of the Secular Right, or elements among the Christian Right that are opposed to the beliefs and practice of Native spirituality and religion or to Nativeowned gaming operations, Native sovereignty represents a real threat to their respective agendas and interests. For that matter, genuine Native sovereignty and self-determination fundamentally challenges the very nature of the United States, which is why this issue (like the larger issue of Criminal Justice this activist resource kit addresses) goes beyond the Political Right to the very heart and soul of U.S. society.
Pages 69-92 of Defending Justice, edited by Palak Shah