NATIVE AMERICANS, CRIME, AND JUSTICE by Marianne O. Nielsen and Robert A. Silverman (Editors). Boulder, Co.: Westview Press, l996. 321 pp.

Reviewed by Jill Norgren, Department of Government, John Jay College of Criminal Justice and the University Graduate Center, The City University of New York
 

The experience of Native American communities in North America, like that of other colonized peoples, included the imposition of external law as well as the apparatus of an outsider’s criminal justice system. Despite the Marshall Court’s 1832 decision in WORCESTER v. GEORGIA (31 U.S. 515) acknowledging Indian nations as "distinct, independent political communities," the United States government spent much of the nineteenth and twentieth centuries pursuing efforts to undermine or destroy the indigenous legal and criminal justice institutions of Native American nations. Resilient Native American societies have, however, retained their cultures. In the Foreword to this volume, the Honorable Robert Yazzie, Chief Justice of the Navajo Nation, writes that Native Americans retain traditional law and government." (ix) NATIVE AMERICANS, CRIME, AND JUSTICE offers both an exploration of the sources of social disruption that lead to criminality in Native American populations and describes the ways in which, again in Justice Yazzie’s words, the use of indigenous knowledge in community institutions under local control"(x) influence the criminal justice systems affecting Native Americans.

This volume is a collection of previously published and new essays addressing issues of the criminal justice system as it is experienced by Native Americans living in the United States and, to a lesser extent, Canada. The editors have also published an edited volume, ABORIGINAL PEOPLES AND CANADIAN CRIMINAL JUSTICE, l992. Their purpose is to make available academic and journalistic articles that will bring a sense of immediacy and relevance of the subject to students. The book succeeds and will be a much-used text in undergraduate courses. For the first time, students of Native American studies and criminal justice systems have access to readings on the full range of Native American experiences with respect to crime, police, courts, sentencing, corrections, and experiments in customary and assimilationist justice initiatives. Following the contemporary publishing pattern, the editors have selected short pieces. While this may cause some frustration, appropriate citations and a full bibliography guide readers interested in a particular topic to longer, more thorough scholarly works. Nielsen and Silverman are straightforward in telling the reader that the number of available articles concerned with Native American criminal justice remains small. They argue for more research. They observe, for example, that "while in Canada Native offenders and native criminal justice issues are a major focus for both scholars and administrators ... in the United States Native issues and offenders receive comparatively little attention because they are overshadowed by the large numbers of African American and Hispanic offenders in the system."(13)

In the broadest sense, Native Americans, Crime, and Justice is organized around questions of Native American governments’ capacity to create and maintain criminal justice institutions. The book contemplates Native American self-determination and sovereignty through its review of literature on the Native American experience with law, police, courts, and corrections. It is a measure of Nielsen and Silverman’s success that the volume is not an ideologically driven harangue. Any instructor using this text, however, must acknowledge that the manner in which Native Americans experience indigenous and American criminal justice reflects a particular history and, critically, a special legal relationship to the United States. One of the volume’s early essay aids in this task. James Dumont’s article, "Justice and Native Peoples: Cultural Emergence of Two Distinct Justice Systems," lays out the starkly different cultural values that inform the meeting of Native Americans and Euro-Americans as they encounter each other in the criminal justice process.

While most of the readings in this compendium are quite accessible, the early section, "Law," demands the reader’s full attention. Here the jurisdictional maze of civil and criminal courts affecting Native Americans, as well as non-Indians living or operating a business within the jurisdiction of a Native American government, is outlined. The maze is daunting. The short excerpts only begin to describe these torturous routes. Readers should pay attention and avoid despair by having a federal Indian law casebook close at hand.

The next section, "Crime," contains an important essay, "Patterns of Native American Crime," by Robert Silverman. The author demonstrates the significant methodological problems in measuring crime by race. Analyzing old and new data, Silverman concludes that "Native American criminality ... is nowhere near as high as it has been portrayed in the criminological literature and popular press."(72) Using l990 census data, he argues that arrest rates for Native Americans are similar to those for White Americans. Silverman writes that social scientists owe Native Americans an apology for "misportraying them as the most criminal population in the United States."(73) The essay commands our attention because Silverman’s analysis of data, and conclusions, have significant social and political implications. Judging from the responses in this volume alone, it has generated debate and reevaluation of earlier research findings.

The role of police as a "force of occupation" has been a central point of discussion for racial and ethnic groups in the United States (Brigham 1996). Nielsen and Silverman address the issue with three essays in a section on police. Douglas Skoog’s article, "Taking Control: Native Self-Government and Native Policing," is the centerpiece. It provides a conceptual framework by which we may address the important question of "what form Native-controlled policing might take in the last decade of the century."(125)

This volume offers a particularly rich selection of articles in its section on courts. Rupert Ross’s superb cautionary essay on the role of cultural differences is wisely complemented by the writings of local experts and practitioners including Tom Tso, Chief Justice Emeritus, Navajo Nation. Four articles on sentencing focus on the important questions of different cultural understandings of punishment and differential sentencing by race and gender. Bachman, Alvarez, and Perkins analyze data from five states (Arizona, California, Minnesota, North Carolina, and North Dakota) in order to test previous findings that American Indians receive longer sentences than Whites in federal and state courts. The analysis of their data indicates that American Indians received longer sentences more often for offenses such as robbery and burglary, as well as for drug trafficking and public order offenses, while Whites received longer sentences for larceny. The results for homicide, sexual assault, and assault were more closely matched. These patterns, however, "showed much variation by crime and state." (206) Hutton, Pommersheim, and Feimer, concerned with sentencing discrimination by race and sex, examine the files of women incarcerated in the South Dakota Penitentiary between l980 and l988. The results of their analysis indicate that as a general proposition, judges in South Dakota "might discriminate on the basis of sex, and probably do not discriminate on the basis of race for female offenders."(219) These researchers caution that the examining differential sentencing patterns tells us little or nothing about differential rates of arrest or plea bargaining.

The question of differential treatment of inmates by identity in the parole process is also explored. Among the articles in a section on corrections, that of Bynum and Paternoster examines the possibility that there is differential treatment of Native Americans in what they term backstage decisions that are "highly discretionary and not very visible."(237) Their analysis reveals the existence of "differential treatment of Native Americans in ... the decision to grant parole."(237) Their discussion of the impact of culturally different perceptions of Native American applicants by Whites nicely complements Rupert Ross’s earlier entry. The theme of cultural difference is further explored in several essays which focus upon the need for culturally specific programs.

Several authors argue on behalf of the right of access to Native American spirituality activities while in prison. Grobsmith, in an essay entitled "The Future for Native American Prisoners," discusses the need for prison drug/alcohol programs to be designed in culturally acceptable ways, to be staffed with qualified Native Americans, and to operate in consultation with Native American inmates.

NATIVE AMERICANS, CRIME, AND THE LAW closes with a useful summary essay by Marianne Nielsen. Perhaps not surprisingly, in bringing their book to its conclusion, the editors also decided to reproduce a HARTFORD COURANT newspaper article on the development of a justice system by the newly rich (gambling profits from Foxwoods Casino) Mashantucket Pequot tribe. Gambling has, in its perverse way, offered colonized economies a fresh start at capitalization. The desirability of institutionalized gambling is much debated in Native American communities where many despair its advent. The COURANT article, however, is a celebration of Native American traditions and institution building. And after reading several of this volume’s chapters describing the ongoing use and success of traditional Navaho dispute mechanisms, it comes as no surprise to learn that in the building of their legal system the Mashantucket Pequot will draw heavily upon that of the Navaho.
 

John Brigham. l996. The Other Countries of American Law." SOCIAL IDENTITIES 2 (2) : 237-254.