Indian Country Supervision

Abstract

In 2023, the Department of Justice published its first-ever report on demographic disparities in revocations of community supervision, a critical yet under-studied part of the federal criminal justice system.  The report revealed extreme and systematic disparities affecting American Indian defendants.  Compared to other groups, American Indians were more likely to have their supervision revoked, more likely to be revoked for non-criminal technical violations, and more likely to be sentenced to additional supervision after revocation.  Although the report acknowledged these disparities, it did little to explain them.

In this Article, I provide the first legal analysis of community supervision in Indian country, identifying three unique features that may contribute to higher rates of revocation for American Indian defendants.  First, the federal government is the primary prosecutor of violent crimes in Indian country, which creates a population of defendants who are more likely to have their supervision revoked.  Second, American Indians tend to live in rural areas, where complying with the conditions of supervision is more difficult.  Finally, the federal supervision system reflects a legacy of conquest that continues to reenact past episodes of discrimination, displacement, and destruction.

To reform Indian country supervision, I argue that the federal government should recognize the inherent authority of Indian tribes to supervise tribal members living in tribal territory.  Community supervision is a core part of tribal sovereignty, because it is not just a form of punishment, but also a vehicle for important social services.  Recently, tribal governments have developed their own formal supervision programs that both incorporate tribal values and send fewer people to prison.  By following the principles of tribal governance, community cohesion, and cultural respect, federal probation officials can promote better outcomes for Indian defendants and fuller autonomy for Indian tribes.